Brace for new voting system
DEFECTS IN ACT: CONCOURT GIVES INDEPENDENT CANDIDATES RIGHT TO RUN FOR OFFICE
Expect a new electoral system in the 2024 general election after the Electoral Act was declared unconstitutional, paving the way for individuals to run for office. But the decision raises many interesting questions.
Judgment requires parliament to devise new electoral system – law expert.
South Africa’s next general elections – scheduled to take place in 2024 – will likely look drastically different after the Constitutional Court yesterday declared the Electoral Act unconstitutional and gave parliament 24 months to come up with a new system which allows independent candidates to run for office.
The court did not order a reading-in in the interim and constitutional law expert Pierre de Vos yesterday said this was because “what is required is a completely new electoral system”.
He said that at this stage, it was impossible to say exactly how this new system would function,
“The judgment requires parliament now to devise a new electoral system that is going to be both proportional and allow independent candidates to run,” he said.
Political analyst Somadoda Fikeni said what was needed was “a unique solution informed by the lessons we have learnt over the past 26 years and using the best international examples as the benchmark”.
Fikeni described the court’s ruling as “a catalyst” for much-needed electoral reform.
“The closed party list system was well-suited for the time of transition, when you wanted as many parties as possible in parliament rather than extra-parliamentary activities, which could be destabilising,” he said.
“But now that everybody has bought into the idea of being part of a democracy, we have identified certain defects in the Act.”
He said “a far more nuanced system” might take shape in South Africa. “Hybrid systems, for example, balance both constituency-based election and the party system.”
In declaring the Act unconstitutional, Justice Mbuyiseli Madlanga said yesterday it limited the right to freedom of association. He said if an individual was free to associate, he or she must also be free not to associate.
“Although for some, there may be advantages in being a member of a political party, undeniably political party membership also comes with impediments that may be unacceptable to others,” he said.
“It may be too trammelling to those who are averse to control, it may be restrictive to the free-spirited, it may be censoring to those who are loathe to be straight-jacketed by predetermined party decisions. It just may at times detract from the idea of a free self.”
The matter has been in and out of court since late 2018, when the New Nation Movement (NNM) – a local nonprofit organisation that describes itself as “a nonpartisan, all-inclusive peoples’ movement”
– first approached the Western Cape High Court with an urgent application to have the Act declared unconstitutional.
The application was dismissed, prompting the NNM to turn to the Constitutional Court early last year and launch an urgent and direct access application for leave to appeal. The application court did not deem the matter urgent, though, and it only ended up being heard in August.
Sandile Swana, also a political analyst, yesterday described the court’s ruling as “long overdue”.
“The current system monopolises seats because the political parties create a bottleneck.”
Asked about the massive resources required for an election campaign, Swana pointed out that independent candidates had already won seats in many local municipalities.
“So the right must be there, we must not assume that resources will not be found. Even among the sponsors of political parties, some may want to sponsor an independent candidate,” he said.
Former Johannesburg mayor and founder of the People’s Dialogue Herman Mashaba welcomed the court’s ruling.
Mashaba yesterday afternoon voiced his support for a mixed electoral system – “providing for at least half of the 400 seats to be directly elected through constituencies”.
26 number of years Electoral Act was in operation.