Civil society scores win on voting system
• Home affairs believes amendment bill should be thoroughly overhauled after 2024 election
In a major concession to appease civil society, the government has proposed a clause in the contentious Electoral Amendment Bill binding it to investigate comprehensive reform of the electoral system after the 2024 general election.
Home affairs minister Aaron Motsoaledi on Monday proposed that a panel of experts be appointed after the 2024 elections to undertake the investigation, which will include a constituency-based system.
Civil society opposes the current bill, which is intended to allow independent candidates to contest national and provincial elections, on the grounds that its electoral reform does not go far enough. It has threatened Constitutional Court action to oppose it.
Motsoaledi ’ s concession was based on an urgent legal opinion obtained from the department’s legal counsel, Steven Budlender and Mitchell de Beer, who also raised concern about the signature requirement for independent candidates (about 8,800) contained in the bill adopted by the National Assembly.
They said this was “unfair” compared with the 1,000 signatures required for political parties. Civil society organisations opposed to the bill have said that the very high signature requirement for independent candidates to qualify represents an insurmountable barrier to them doing so.
“We are of the firm view that the new system proposed in the bill should be adopted only for the 2024 elections, and that the bill should specify the creation of a body of experts — broadly representative of society — to undertake a more thorough and long-term investigation into the electoral system, and propose more long-term and larger
reforms to the system, should they be appropriate,” the department’s legal counsel said in an opinion presented at a meeting of the National Council of Provinces (NCOP) select committee on security and justice on Monday by home affairs director-general Tommy Makhode.
“That would give parliament, the department, the Electoral Commission of SA (IEC) and society as a whole a much longer period of time to consider the issues raised … and how best to balance this with the constitutional requirements of proportional representation in the system,” legal counsel said.
“The 2024 elections will provide concrete evidence of any merits or demerits of the proposed system. And the elected parliament, which provides the long-term electoral reform, will be the result of a system which permits independent candidates to contest elections. We are currently considering precisely how to achieve this in the bill.”
Motsoaledi and the IEC reiterated during the meeting there was “no way under the sun” that a totally overhauled electoral system based on demarcated constituencies, as demanded by a multitude of civil society organisations, could be in place before the 2024 elections.
There was also no way that the Constitutional Court would agree to a postponement of the elections, Motsoaledi said.
He urged the NCOP to “cure” the inequality in the bill regarding the number of signatures required to ensure equality between independent candidates and political parties.
Commenting on the proposal for the appointment of a panel of experts, Independent Candidates Association SA founder Michael Louis noted that there had been several prior investigations into an electoral system including those by the Van Zyl Slabbert commission, the Motlanthe high-level panel report and the report by the ministerial advisory committee headed by Valli Moosa.
Their recommendations had not been adopted.
The committee is grappling with how to deal with the proposed amendments within the Constitutional Court’s December 10 deadline for parliament to adopt a bill that allows independent candidates to contest national and provincial elections. But if the select committee and the NCOP adopt amendments to the bill, these will have to go back to the home affairs committee of the National Assembly for concurrence and then be adopted by the assembly. There is very little time within which to do this before December 10 and committee members were very frustrated by the time pressures.
Motsoaledi said it was up to the NCOP to decide whether to ask the Constitutional Court for an extension of the deadline.
Parliamentary legal adviser Siviwe Njikela said he would propose a strategic way forward at the Wednesday meeting of the committee. He warned that the new amendments being proposed for the NCOP committee would affect the ability of parliament to meet the court deadline.
National Assembly speaker Nosiviwe Mapisa-Nqakula proposed last week that parliament might only be able to consider the NCOP changes to the bill after the 2024 election.
The other possibility would be for parliament to extend its last term, which ends on December 1, to process proposed NCOP changes.
Budlender and Mitchell said that “requiring an independent candidate to obtain eight times the number of votes to contest one election than a political party does to contest all elections strikes us as arbitrary and unfair.” They and the IEC proposed that the signature requirements for political parties be equal to that of independent candidates.
An independent who was elected to the National Assembly or a provincial legislature as an independent candidate in the preceding election should be exempted from the signature requirement.
IEC CEO Sy Mamabolo said the commission was of the view that in general the bill met the requirements of proportional representation. “There is no alternative system that has been advanced that provides a more proportional outcome than that in the bill. The bill thus ensures an outcome as proportional as mathematically possible.”
MOTSOALEDI SAID IT WAS UP TO THE NCOP TO DECIDE WHETHER TO ASK THE COURT FOR AN EXTENSION OF THE DEADLINE