OPINION | Michael Louis: The electoral bill remains deeply unconstitutional

In light of the current state of our nation engulfed by failing infrastructure, an ailing economy, stagnant unemployment, rising inflation, unabated corruption, and unaccountable politicians – we have a rare and timeless chance to change it all. Before us is a six-month window of opportunity to create a legislative framework for us as the electorate to directly nominate our best four hundred leaders to lead our country out of the failing status quo.

As civil society, we remain frustrated that the government has put up an iron curtain between themselves and the people of South Africa. Over the past four years, we have endeavoured on behalf of citizens to reach out to our government representatives and submit alternative electoral frameworks that will be constitutionally compliant and ad idem to many statutory recommendations from Van Zyl Slabbert Commission to the Valli Moosa MAC report. Yet our voices are not heard, never mind considered. Instead, Parliament remains captured by the Executive arm of government, abdicating their function as legislators in favour of bowing to the whim of the Executive.

If Parliament does not adhere to the separation of powers, we as civil society will have no alternative but to rely on the judiciary to assist in fulfilling the legislative function. This is a continuous danger because we are aware the judiciary cannot get involved in policy and can be labelled as politically active and being captured. A position that is not beneficial for our democracy.

Concerns around the electoral bill

Currently, the Parliamentary Committee on Home Affairs is working through the parliamentary recess period to finalise the Electoral Amendment Bill, although progress in resolving several complex issues which seems to be slow. Despite the substantive proposals made by the IEC to remedy faults, several civil society organisations remain deeply concerned that the Bill is still unconstitutional.

Notwithstanding the progress made by the Committee in several areas, there is a genuine concern that the critical question of meeting the constitutional requirement of proportionality is not receiving proper attention by the Committee. There is also concern that the anticipated timelines for passing the Bill do not allow for any further public consultation, which could be carried out by the National Council of Provinces. This would be deeply problematic, as the Speaker of Parliament, in the April submission to the Constitutional Court, gave this further consultation as one of the primary reasons for seeking the extension of the deadline to pass the legislation needed to give effect to the constitutional right of independent candidates to stand for election in the national and provincial elections.

One of the alarming proposals before the Committee is the requirement for independent candidates to secure signatures equal to half of the quota of votes from the previous election. Requiring more than 20,000 signatures from a single independent or even from small parties is an absurd barrier to entry. This cannot be in the spirit of the court’s ruling to give effect to the rights of individuals to contest elections.

Giant constituencies 

One of the IEC proposals adopted by the Committee is for a second ballot for the National Assembly, effectively turning provinces into giant constituencies where independent candidates may stand. This moves us away from the so-called “minimalist” option and creates a system that nobody wants. Broad sections of society have been calling for some form of constituencies, to create a more meaningful connection and accountability between citizens and their MPs.

In fact, opposition MPs in the Standing Committee acknowledged that a constituency-based system is the preferred electoral system desired by the majority of citizens. It cannot be acceptable that they rely on the fact that it must be held over to the new government post-2024 to make this decision. We cannot be certain that a new government will have the political desire to carry this out. The moment is not post 2024 – the Kairos moment is now.

The fact remains that, in terms of the current Bill, every vote cast in favour of independent candidates will contribute to the seats gained by the largest parties in both the National Assembly and the provincial legislatures. It remains possible for the largest party to win a majority of seats while obtaining a minority of votes. This offends every notion of proportionality and fairness. There is no remedy for the constitutional problem except by creating meaningful constituencies at a local or regional level, combined with a separate proportional representation ballot. This is exactly what civil society has been clamouring for, and what all investigations into our electoral system have recommended. It is what the Ministerial Advisory Committee recommended to the Minister in June 2021.

A wasted opportunity 

It seems that the Minister and the Committee are unwilling to consider the possibility that the founding premise of the Bill is flawed, despite the many submissions and representations that have been made. This leaves open the question of whether, under pressure of deadlines, the need to save face is driving the process forward. It hardly bears pointing out how damaging this could be for our democratic framework. We face the prospect of creating an electoral system that satisfies nobody. We also face the prospect of this system being challenged and overturned in the Constitutional Court and having to begin the process all over again. It is hard to imagine the reputational harm that will be suffered by Parliament, who will have failed utterly to give effect to the court’s wishes. It is probably already too late for the 2024 election to be held in terms of a new, fair, and constitutional Electoral Act.

Despite the wide clamour for meaningful electoral reform and despite the court’s clear injunction to create a system that fairly incorporates independent candidates, we are no further on. We have wasted the opportunity to give effect to the shared understanding that the 1999 election was an interim system, meant to lead us on to a more inclusive and accountable form of representation.

We cannot now undo the egregious delays, but it is intolerable for us to accept a sub-par and unconstitutional electoral system because we are being held hostage to delays of the government’s own making. The process of electoral reform needs a more urgent inclusive approach with urgency. It is with sadness and disappointment that the voices of only four main political parties are heard and that the voices of other political parties not represented in the Standing Committee of Home Affairs are not heard at all. We challenge all other political structures and political parties not represented in Parliament, now is your time to equip yourselves with the knowledge of what is currently the status of the Bill and to act.

We must discuss each proposed system

This was one of the key pronouncements of the Constitutional Court judgment last week – that the legislative function resides in the hands of Parliament and not the executive. We need to be discussing the various systems that have already been proposed. We need to understand the advantages and drawbacks of each system and reach an outcome where all South Africans feel that they have a real stake in how we elect our members of Parliament.

In the many unanswered letters addressed to the Home Affairs Minister and the Standing Committee, we caution that the current trajectory being followed remains unconstitutional and request an urgent intervention of mediation to prohibit plunging our country into a constitutional crisis.

We remain committed to being a constructive force in fulfilling our role to achieve our mandate of a government represented “by the people, for the people” and the constitutional principle “one seat is equal to one vote.”

We still have a long way to go!

– Dr Michael Louis is the founder of the Independent Candidate Association.

The electoral bill remains deeply unconstitutional

One Response

  1. We who established the Devoted Citizens of Joh’burg(DCOJ) have a very similar vision to your’s. Please can you send us Dr Louis’ email address/phone no. so that we can discuss a working relationship.

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