Electoral Amendment Bill under consideration ignores the Constitutional Court directive for Parliament to pass a law to include independent candidates in all our legislative bodies
CAPE TOWN – When the current fighting over the appropriate scope of the legislation to include independent candidates into all our legislative bodies stops, Parliament and civil society organisations must help independent candidates and political parties serve our democracy as neighbours again.
We now know that prospective independent candidates mean to intensify their fight against political party invasion of their right to be members of all legislative bodies, with determination and bravery. In that fight, they must have support. We cannot fail to admire fellow South Africans as they take up advocacy weapons to defend their political rights as citizens against meaningless aggression of self-imposing political parties meant to be merely vehicles for the enjoyment of political rights.
But what does support mean? Most South Africans agree that the:
Electoral Amendment Bill under consideration ignores the Constitutional Court directive for Parliament to pass a law to include independent candidates in all our legislative bodies. The Constitutional Court’s June 2020 ruling that South Africa’s current electoral system is unconstitutional gave Parliament two years to make the necessary changes to the law. With less than 100 days to go until this court-ordered deadline of June 11, 2022, the matter is finally and hastily before Parliament, and both the proposed bill and the process to pass it are littered with flaws and political ineptitude.
I have spent many years on this subject, including pursuing doctoral degree research to understand why more than 20 years since the dawn of democracy in South Africa, the current electoral system does not yet make provisions for independent candidacy at all levels of government. Instead, it disqualifies citizens who are not members of a political party from standing for public office at national and provincial levels.
This is so because, at national and provincial levels, there is an intrinsic link between the right to stand for public office and political party membership. Political parties exclusively determine who is included in lists of candidates elected to legislative bodies.
Yet, as the Constitutional Court has found, when the law excludes adult citizens with no political party affiliation from standing for public office, this exclusion creates a blockage in a participatory and representative democracy. It deprives the country of independent candidates who might add value to democracy by bringing into a political agenda interests often overlooked by political parties.
Regrettably, we saw in Parliament last week that some do not share the same interest in facilitating the inclusion of independent candidates in our representative democracy and continue to delay proper changes to the law.
With most established political parties in their possibly deranged state due to declining electoral support and rampant factionalism, they perceive that the resulting paranoia and disintegration would play against their political fortunes. In their view, opening space for independent candidates would be truly appalling to their narrow political interests and, on present evidence, risk a catastrophe that is as uncertain as it is unjustified.
Political parties such as COPE and New Unity Movement have rightly joined the rest of civil society organisations in expressing their horror. Michael Louis – an MP and the founder of the Independent Candidate Association of SA (ICA) – says his association has argued in Parliament that the proposed Electoral Amendment Bill is an attempt by the executive to trick Parliament into rubber-stamping its half-baked decision which ignores the directive from the Constitutional Court on electoral reform.
Indeed, when the sponsor of the legislation under consideration, Home Affairs Minister Dr Aaron Motsoaledi, was called on to do more than signal virtue by taking a cue from the accommodative version of electoral reform – provided for in an alternative Bill introduced by COPE president Mosiuoa Lekota – he reverted to type by rejecting this private member initiative pre-emptively on February 23, the same day the finance minister delivered his Budget Speech.
As a result, the bill does not provide for demarcated single representative constituencies but uses provinces as the constituencies that several independent candidates will represent. No wonder an ANC veteran Valli Moosa, chair of the ministerial advisory committee appointed by Motsoaledi to advise on electoral reform to address the court judgment, said in a letter to the committee that the bill violated the principle of each person having a single vote of equal value.
He correctly pointed out that the proposed bill will result in the discarding of votes for independent candidates over and above the threshold required by them to be elected, which will mean the discarded votes do not count. Why the Cabinet did not accept the majority view of the committee supported by Moosa, which proposed a hybrid multi-constituency and proportional representation system is again a demonstration of what the ANC government sees as a catastrophe that is as uncertain as it is unjustified.
Instead, the Cabinet mischievously opted for the minority, minimalist option. Motsoaledi said this was because there might not be enough time to implement full-scale electoral reforms. How convenient! Though he later downplayed this cynical view, it showed that when push comes to shove the ANC government’s perceived hostile environment is instinctive and its support for the inclusion of independent candidates in all legislative bodies is all but hollow.
As for how long this dithering will take, the public – and especially those already voting for independent candidates in municipal elections – should know how hard it is for an arrogant dominant political party to withdraw its unwarranted aggression against a supposedly weak political competition, and how vacuous its excuses become.
The continuing deprivation of an alternative is unjustly allowing for independent candidates and their supporters to suffer years of being without representatives and deceit by puppet political party representatives until political voices within politicians in Parliament and civil society organisations persuade whoever occupies the seats in the Cabinet to relent.
Those voices are what everyone – independent candidates, political parties, and the rest of South Africa – most desperately need just now. They will require not ostracism and hostility from the spoilers but contact, friendship, and encouragement. Someday, preferably soon, the mischievous ANC signalling has to stop, and serious deepening of our representative democracy resume.
* Nkosikhulule Nyembezi is a human rights activist and policy analyst
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This is the most significant legislation change on electoral reform since 1994.
We cant sit by idly hoping that parliament and political parties will simply do the right thing and comply with the Con Court ruling.
Electoral reform moves power from political parties to the people they are meant to represent – ie to every South African. Sounds a lot like democracy to me.
Thank you for the comment and for sharing your thoughts