Ramaphosa’s electoral reform headache as December deadline looms

by Michael Appel

Opposition to the electoral amendment bill, in its current form, continues to grow, with Ramaphosa under increasing pressure to act before the 10 December deadline. In June 2020, the Constitutional Court ordered Parliament to make the necessary legislative changes to the existing electoral law, which makes it impossible for an independent candidate to stand for office without being part of a political party. This provision is at odds with the country’s Bill of Rights. Parliament was given 24 months to make the changes but that deadline lapsed in June this year and Parliament was granted an extension until December. BizNews correspondent Michael Appel spoke with the chairperson of the Independent Candidate Association, Dr Michael Louis, about the continuing shenanigans that bedevil the constitutionality of the bill and what options remain on the table ahead of the 2024 national elections. – Michael Appel

To read the recent opinion piece by Louis click here.

Excerpts from interview with Independent Candidate Association chairperson Dr Michael Louis

Dr Michael Louis on whether any concession has actually been made regarding electoral reform

We know that the electoral amendment bill is now at the National Council of Provinces. On Monday the Minister of Home Affairs Dr Aaron Motsoaledi actually came out with a recommendation that they are looking to interpret a clause in the bill that would make the bill only relevant to the election of 2024. The minister is then planning to institute and appoint a comprehensive electoral team post-2024 to go and relook at a full overhaul of the electoral system. That’s why they believe that there’s a win for civil society, because we’ve always said that this bill doesn’t go far enough. The problem that we’ve got as civil society is that this journey has always been about justice and about constitutionalism. It’s not about the system. Firstly, I think that they have had more than enough time to have comprehensive reform for this election. And as we know, the minister knows as well that there was the Van Zyl Slabbert report in 2003. There was the Motlanthe High-Level Report in 2017. There was the Zondo Commission report in 2022. On top of this, there was the Ministerial Advisory Committee established in 2021, giving an intensive overview of what the electoral system should look like. So we are a little flabbergasted that the minister wants to go to another commission after 2024 to advise Parliament. I don’t believe it will have a different result and we definitely don’t believe it’s a win for civil society.

On the inherent unfairness of requirements placed on independent candidates versus political parties

The big thing is for an independent candidate to stand for office, there are certain barriers to entry. The first barrier to entry is signatures. For a political party to register on local government level for a ward is 500 signatures for them to register. If a new political party wants to register [to content nationally] you need to get 1,000 signatures. But if an independent candidate wants to register today, they must get between 16,000 and 19,000 signatures. So it depends on which region you want to stand. If you’re going to stand in the Northern Cape, it’s going to be 16,000, and if you’re going to be in the Western Cape or Gauteng it’s going to be up to 19,000. The second thing is when it comes to reaching the quotas. What does an independent candidate need to attain to get into public office? The truth be told is that at the moment, the average that a political party needs to attain is about 43,000 votes. It depends on the amount of people that actually go and vote in 2024. But the truth is that an independent candidate needs to get anything from 69,000 votes to 91,000 votes.

On the potential for delays should civil society seek to take the bill back to the ConCourt

The members of the NCOP will vote on passing the bill on 29 November. We know that there’s going to be some changes to the bill because the IEC is making some very important recommendations. Also, the minister advised that he’s bringing in this new clause that full electoral reform will be taking place after 2024. So we know that there’s going to be changes, which means that this bill needs to go back to the National Assembly. It has to go back to the National Assembly Standing Committee. It needs to go back to the National Assembly for debate, which is round about the 4th or 5th of December. It gives the President four or five days to apply his mind to one of the most important pieces of legislation in our history since our liberation in 1994. I’ve done some extensive analysis of all the bills that have gone to the President between 2014 to 2019. On average, the President has taken 45 days to sign a bill, yet he’s going to have under five days. What we think the way forward is to sign a petition as civil society – because we now have over 77 civil organisations supporting us – to ask the President not to sign the bill. That’s the first thing. The second thing is not to ask for a condonation application, but for the president himself to, by virtue of an ex parte application, go to the Constitutional Court and say that he hasn’t had enough time to apply his mind to the constitutionality of this important bill. He himself would then be applying to the Constitutional Court to determine constitutionality, and then civil society will act as amicus curiae [friend of the court]. All of us will then come with our submissions to the Constitutional Court to be the arbiter on whether this bill is constitutional.

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