Durban - Civil society organisations are expected to challenge the Electoral Amendment Act, which was signed into law by President Cyril Ramaphosa on Monday, saying the act in its current format does not change the electoral systems.
The new law allows for independent candidates to stand for election in Parliament and provincial legislatures, but critics say Ramaphosa did not consult Parliament or the Constitutional Court regarding some of the issues raised about the bill. They also labelled it as unfair to independent candidates, who will not be able to contest freely against political parties.
The Electoral Commission of South Africa (IEC) has warned that litigation and the subsequent continued uncertainty could affect the quality of next year’s elections, expected to take place between May and August.
The act comes three years after a judgment by the Constitutional Court, which declared the Electoral Act 73 of 1998 unconstitutional for only allowing election to Parliament and the legislatures through membership of political parties.
The act sets out the provision for objections to independent candidates; the requirement for the appointment of agents by independent candidates; and a revised formula for the allocation of seats and their re-allocation in the event of vacated seats, among others.
It also provides for the appointment of the electoral reform consultation panel by the minister of home affairs in consultation with Parliament, and the IEC that will investigate, consult and make recommendations on electoral reform.
The panel is expected to submit a report to the minister within 24 months after the 2024 elections.
Last year, more than 50 civil society organisations protested outside Parliament against the bill, after claiming that lawmakers ignored a report that sought to overhaul the system and make it more equitable and fairer to all South African citizens in favour of a minority report, which proposed cosmetic changes to the electoral system.
Organisations say the issues with the bill as it stands are:
- Proportionality that will be affected due to the three-ballot system (two ballots for National Assembly and one ballot for the relevant provincial legislature.)
- Independent candidates can only contest 200 seats in the National Assembly, and not the other 200 compensatory seats and wasted votes will occur because of this.
- Independents can win only one seat in the National Assembly once votes equal to the seat quota are met, with all excess votes discarded.
The matter of vacancies in Parliament that arise through resignation or death, whereby the individual’s seat is ultimately going to be given to bigger parties.
My Vote Counts spokesperson Sheilan Clarke said they were still discussing the possibility of litigation to rectify aspects of the act, although this was unlikely to take place before the 2024 elections.
“In all likelihood, it will have to be rectified in the future for the benefit of all independent candidates who want to stand for election.
“There simply has not been enough public participation on a bill that will affect communities and voters.”
Clarke said the act in its current format did not change the electoral systems as was envisaged by those who wanted changes.
Rachel Fischer, Outa’s parliamentary engagement and research manager, said the act affected the fairness, transparency and accountability of the electoral system.
“The concerns Outa has raised could have significant implications for the outcome of elections and representation in legislatures for citizens.”
She said it was unfortunate that the first opportunity presented by the Constitutional Court judgment in 2020 was not used to its full potential.
“We strongly believe that independent candidates are more answerable to their voters as they face a real likelihood of being voted out if they fail to honour election promises,” Fischer said.
“In January we called for a clearly constituted electoral reform consultation panel which includes civil society and with predetermined deadlines and deliverables, for greater fairness for independent candidates and for the votes of all citizens to count. We also warned that, if the bill fails to meet constitutional standards, it may be legally challenged.”
Build One South Africa movement said they noted and supported the decision by a grouping of civil society organisations to challenge the act in the Constitutional Court.
At a press briefing on Monday, IEC chairperson Mosotho Moepya said it was not ideal to have the electoral system challenged in court a year before elections, but they accepted that people may challenge the law or seek clarification.
“Parliament has now done what it needed to do, or thought it needed to do. The president has now signed it into law and, indeed, the time is now ripe.
“Ideally, a year before an election, we don’t have this, but we accept that this may be the time that people have, quite correctly so, to raise concerns they might have. That is a process that will take its course through the appropriate channels,” Moepya said.