Parliament is in the process of amending the Electoral laws ahead of next year’s general elections. This, after the Constitutional Court (ConCourt) declared the Electoral Act invalid in so far as it does not allow independent candidates to contest elections at provincial and national levels.
Parliament was ordered to fix the defect within 24 months. However, it has since missed two extensions to finalise the Bill.
The Electoral Amendment Bill is mostly aimed at expanding the Act to include independent candidates as contesters to elections in the National Assembly and provincial legislatures.
Currently, independents can only contest at the local government level. The New Nation Movement deemed this to be unconstitutional, and the apex court agreed.
In June 2020, the ConCourt ruled that Parliament must make the necessary changes by June 2022. The bill was introduced to Parliament by Home Affairs Minister Aaron Motsoaledi in January 2022.
The Portfolio Committee on Home Affairs received hundreds of written submissions and scores of oral submissions from individuals and organisations.
Public hearings were also conducted across the country. This extensive public participation process soon made the committee realise it would not meet the deadline. It then approached the ConCourt for a six-month extension.
This was granted until the 10th of December.
Electoral reform has been an ongoing discussion in South Africa for years. The Van Zyl Slabbert report was commissioned by Cabinet in 2003 to look at this very issue.
The government has previously been accused of failing to take electoral reform seriously enough. This was brought up again during committee deliberations when opposition parties questioned why the Van Zyl Slabbert report had been left to gather dust rather than having its recommendations implemented.
But Minister Motsoaledi defended the government’s position. He said that the report did not specifically deal with the issue of independents.
He stressed the importance of broader electoral reform, saying it is an issue that needs to be dealt with. One of the ways in which Motsoaledi’s department wants to send a signal about its commitment to electoral reform is with the provision for the establishment of a panel in the bill, which will investigate what exactly is needed to reform the system, and how it should be implemented.
This clause was introduced to the National Council of Provinces (NCOP)’s Select Committee on Security and Justice after the bill was passed by the National Assembly.
Legal Counsel for the Department of Home Affairs, Adv Steven Budlender says, “The object of the panel is to independently investigate, consult on, report on and make recommendations in respect of potential reforms of the electoral system for the election of members of the national assembly and members of the provincial legislatures, in respect of the elections to be held after the 2024 elections.”
The addition of this provision, as well as a further round of public hearings on the matter of how many signatures candidates would need to be able to contest, are substantive proposals made by the NCOP, and largely why the second request for an extension was made.
Civil society organisations weighed in on this second request. The Council for the Advancement of the South African Constitution (CASAC) says this demonstrates how poorly Parliament has handled the process.
CASAC’s Lawson Naidoo says, “Parliament has run this haphazardly, with no proper public participation process up to now. And even now on basis of the second extension, given the December holidays, how adequate will that time be? For some key changes made by NCOP to the draft electoral amendment bill.”
Independent Candidates
While the Independent Candidates Association said civil society had lost faith that Parliament considered its recommendations with the seriousness it deserved, the Association has however welcomed the extension, saying it places a high value on public participation.
Independent Candidates Association’s Michael Louis says, “However, our organisation will be applying to the courts coming in either as amicus or as applicants in support of the respondents that we would like a supervisory order adjacent to the extension, with timelines, quality, and deadlines of what parliament is expected to do.”
Parliament’s request was for an extension until the end of February, but the ConCourt ruled the bill needed to be completed by the end of January.
The Electoral Commission (IEC) says this relief by the ConCourt will not hamper its preparations for the 2024 national elections.
IEC CEO Sy Mamabolo says, “We will be in a position to commence with the preparation work on the basis of what is currently in the bill, we do so on a risk basis, and we hope that the structural features of the bill would not change in the intervening period.”
Meanwhile, the New Nation Movement is challenging the proposed amendments, saying they have nothing to do with the original order.
New Nation Movement’s Bulelani Mkhohliswa says they have been asked by Parliament to make submissions on their concerns about the proposed amendments.
