Independents body battles ‘invalid’ Electoral Act

The Independent Candidate Association (ICA) will ask the Constitutional Court in papers lodged on Friday for direct access to the court for its application to have sections of the Electoral Act declared invalid and unconstitutional.

If the association succeeds fully in its application, the 2024 general election will not be held on the basis set out in the Electoral Amendment Act, which provides for independent candidates to stand for national and provincial elections for the first time. Civil society is opposed to the way this was brought about.

The association says that the Electoral Act as amended will not create a level playing field for contests between independent candidates and political parties. It wants independents to be able to contest more than the 200 National Assembly that the legislation allows.

The application is brought against home affairs minister Aaron Motsoaledi, President Cyril Ramaphosa, National Assembly speaker Nosiviwe Mapisa-Nqakula, National Council of Provinces chair Amos Masondo, the Independent Electoral Commission and all political parties registered for National Assembly elections.

The applicant contends that the section of the act providing for 200 seats in the National Assembly to be allocated from regional seats and 200 seats to be allocated on a national basis is unconstitutional. The applicant asks for the declaration of invalidity of some of the clauses of the act to be suspended for a period of 36 months for parliament to address the unconstitutionality but directing that, until such time as parliament has done so clauses should be read into the act. These read-in clauses would apply for the 2024 elections.

In terms of these clauses, National Assembly seats will be allocated in a way that 350 seats are filled by independent candidates and candidates from lists of candidates of parties contesting the nine regions (the regional seats) and 50 of the seats to be filled by candidates from lists of candidates of parties (the compensatory seats).

Independent candidates may contest only regions (provinces) and not on a national basis. ICA chair Michael Louis said in his affidavit that the effect of the 200/200 split between regional and compensatory seats is unfair as it means that independent candidates must achieve far more votes to win a National Assembly seat than political parties. This distorts proportionality and reduces the value of votes cast in favour of independents for no reason.

In terms of the amended act independent candidates may compete only for regional seats and not compensatory seats. Louis says the effect is that parties compete for 400 seats and independents for only 200.

“Naturally this increases the quota for independents to gain seats drastically. There is no justification for the 200/200 split between regional and compensatory seats. The compensatory seats can be reduced from 200 to 50 without affecting the overall proportionality of the outcome,” Louis says in his affidavit.

“The increase in the regional seats to 350 and a corresponding decrease in the compensatory seats to 50 is sought as the relief in this application. It is contended that the 200/200 split is irrational and inconsistent with the constitution.”

The electoral system for provincial elections is not challenged as there are no regional and compensatory seats at provincial level though independents may compete in these elections as well.

“This already tells one that the compensatory seats are not a necessary feature of the electoral system,” Louis argues.