Currently, Parliament is considering what is arguably the single most important piece of legislation before it since the dawn of democracy thanks to the seminal New Nation Movement judgment handed down by the Constitutional Court.

It is disheartening that after 18 months of moving at a snail’s pace, Parliament has already resolved to approach the Constitutional Court for an extension to the court-ordered deadline of 11 June 2022, with not much to show for the time that has already passed.

Current system transitional

Our current system was always supposed to be transitional and was not prescribed for long-term use. In 2002, President Thabo Mbeki established a task team led by the late Frederik van Zyl Slabbert. They released a majority report in 2003 which proposed combined constituency and proportional representation models.

In 2006, the National Assembly had an independent commission assess the electoral system. That committee found that the system needed urgent reform. No further action was taken. In 2017, the Motlanthe high-level panel recommended an amendment to the Electoral Act to provide for a system that made MPs accountable to defined constituencies. No further action was taken.

These were three documented occasions over 20 years when recommendations were made for electoral reform, with no electoral reform from the ruling party to show for it.

Time is not an excuse, there have been numerous opportunities to do this, and Parliament has failed to do it. This is just the first time that the judiciary has held them accountable to act.

The way Parliament has handled the Electoral Bill is exactly why we need electoral reform. We need independent candidates and constituency MPs who can ignore the interests of the party, be loyal to their constitutional duties and serve the people without timidity and party tribalism.

Aside from the holistic transformative measures that the bill fails to address, namely a constituency-based system, there are four constitutional issues that need to be addressed before this bill goes any further.

1. The discarded vote

An independent candidate will be allocated a regional seat if they receive enough votes to meet the first or second quota of votes per seat. Should they receive surplus votes, those votes will be discarded.

The discarding of surplus votes has a deleterious effect on the right of citizens to vote and on the proportionality between vote share and seats. The right to vote in section 19(3)(a) of the Constitution must be interpreted as a right to a vote that counts equally or is of equal value to the votes of others.

Wasted votes may be an unavoidable consequence of the accommodation of independent candidates within our electoral system. However, the possibility of a surplus vote transfer – as proposed in the People’s Bill – gives better effect to the principle that each citizen has an equally effective voice and achieves a higher degree of proportionality between vote share and seats. This would allow candidates to declare, prior to election day, another independent candidate who can receive their surplus votes.

It would be a travesty and a regression in our hard-fought democracy to discard the votes of citizens in a country built on the value of ubuntu – the being of one, dependent on the being of another.

2. Independent candidates’ limited access to 200 seats in Parliament

Precluding independent candidates from contesting 200 of the seats in the National Assembly and reserving those seats for political parties limits the right of independent candidates to contest elections in terms of section 19(3)(b) of the Constitution, and in turn, limits the right of citizens to vote.

An independent candidate will not be able to win a seat in the National Assembly despite having significant support from the electorate (albeit spread across the nation, instead of concentrated in one region) and despite receiving sufficient votes to meet the quota of votes per National-to-National seat.

Political parties and their supporters do not suffer the same disadvantage. A political party that does not obtain sufficient votes to win any regional seats may still obtain a compensatory seat in the National Assembly.

This is plainly not an equal opportunity to contest the elections.

3. Requirements for independent candidates to contest elections

Independent candidates will be required to submit a minimum number of signatures and will also have to pay a monetary deposit. The deposit is refundable if the independent candidate is allocated a seat but is otherwise forfeited to the state. Failure to comply with either requirement will result in disqualification from contesting the elections.

While we appreciate that the purpose of imposing a deposit requirement on independent candidates is that it will ensure that candidates have a serious intention of contesting elections and limit the number of frivolous candidates on the ballot, there are less restrictive means that achieve that purpose. The signature requirement imposed could sufficiently minimize frivolous candidates.

More so, given the history of dispossession and exclusion in South Africa, the deposit requirement will likely have a disproportionate effect on previously disadvantaged racial groups and women. The imposition of a monetary deposit indirectly discriminates against less affluent potential candidates.

4. Vacancies

In the event of a vacancy in a legislature of a seat allocated to an independent candidate, the Electoral Amendment Bill provides that the seat will not be filled until the next national and provincial elections. Leaving the seat of an independent candidate unfilled in the event of a vacancy deprives the voters who elected that candidate of representation in the legislature. In De Lille v Speaker of the National Assembly, the court emphasized the importance of the representation of citizens in the National Assembly.

The People’s Bill presents multiple ways to resolve this which largely emulate the practices followed at the local government level. For example, the death of an independent candidate would trigger a by-election.

We urge Parliament to correct these constitutional defects to avoid a court challenge and further delay this already slow-moving process. To not do that would be to jeopardize the national election in 2024 – which is detrimental to a functional and stable democracy.

The public has not had an opportunity to engage properly with the People’s Bill, which is a perfectly viable alternative to the Executive Bill, and it also directly resolves the constitutional issues contained in the Executive Bill. We suggest that it makes procedural sense to have a public participation process on both bills at the same time and emerge from this process with one constitutionally compliant bill that reflects the will of the people.

– Mudzuli Rakhivhane is the spokesperson for the One South Africa Movement.