No former liberation movement should mess with our values

Electoral Act Amendment Bill must make place for independent candidates

LET me introduce you to South Africa’s latest electoral system eyesore plan – the marginalisation of independent candidates.

For many years, selfish political party interests have been making a mess of our democracy – and the mishandling of the current Electoral Act Amendment Bill process is among the worst.

I could not imagine that the governing ANC might inflict any more political damage on the deliberative and representative values of our democracy than it has already done. No self-respecting former liberation movement on Earth should be allowed to mess up our constitutional values and principles.

The Department of Home Affairs opposes many objections against aspects of the bill raised in public hearings held throughout the country by Parliament’s Home Affairs Committee, last week’s news headlines screamed.

The bill was introduced in the National Assembly only on January 10, and Parliament will not meet the June 10 deadline set by the Constitutional Court. Parliament’s presiding officers have applied to the court for a sixmonth extension, and the clock is ticking fast on the 2024 national and provincial elections in which independent candidates must contest.

It is inconceivable that most South Africans or the courts will tolerate such an intrusion. This situation begs the question: Is the Constitutional Court uniquely suited, and Parliament particularly ill-equipped, to police selfinterested behaviour on the part of the ANC majority in Parliament?

One of the defining features of this law-making process is that it involves political parties, not merely as rights-holders entitled to contest elections, but as duty-holders entrusted with facilitating the enjoyment of the same rights by independent candidates and their supporters. They must encourage independent candidacy in line with their Section 7 constitutional duties to “respect, protect, promote, and fulfil”.

These duties require others, especially parliamentarians, to do three things. To avoid depriving the freedom to make political choices of citizens with no political party affiliation.

To protect independent candidates and their supporters from deprivation by the state and third parties.

And to assist all the deprived citizens by promptly adopting an inclusive electoral system that produces an election that results, in general, in proportional representation of citizens by political party and independent public representatives in all legislative bodies.

They must do so, according to Section 7, understanding that the Bill of Rights is a cornerstone of democracy in South Africa and that it enshrines the rights of all people in the country and affirms the democratic values of human dignity, equality, and freedom.

They must also understand that we must include independent candidates in our electoral politics for the effective enjoyment of the right to vote, the right to citizenship, and the right to freedom of association. It is essential to preserve all other human rights and protect the representative and participatory elements of our democracy.

Regrettably, we see that “the political market” is systematically malfunctioning. The legislative amendment process is undeserving of trust because of the ANC’s manipulation of incumbency-entrenching measures in mainly two ways.

First, some parliamentarians are choking off the channels of political change to ensure that they stay in legislative bodies and the independent candidates outside stay out.

Second, these parliamentarians are bent on calculations that, though independent candidates will be allowed to contest in the national and provincial elections, political parties benefiting from the current proportional representation system will systematically disadvantage independent candidates and independent voters.

It is an appropriate function of Parliament to keep the machinery of democratic government running and to maintain open political participation and communication. What is inappropriate is to exhibit conflicted positions inherently present in elected representatives who are unable to objectively identify and repair stoppages in the electoral system designed to facilitate democratic processes.

In passing an inclusive electoral system, Parliament should be careful not to lead citizens to conclude that the Constitutional Court is uniquely suited, and Parliament is particularly ill-equipped, to police self-interested behaviour on the part of some parliamentarians.

Parliamentarians cannot design our electoral system to freeze the existing political state of affairs by unreasonably inhibiting the growth of smaller parties and proper representation of independent candidates.

The insistence that these amendments sponsored by the ANC government answer the electoral system deficiencies is sick; most are political party bank balances in the legislative bodies so far as they worsen an unlevel political playing field.

Yet, Home Affairs Minister Aaron Motsoaledi stressed to MPs during a committee meeting on April 29 that there was “no electoral system anywhere in the world that is so perfect as to meet all the concerns and the desires of people in that particular country”.

Meanwhile, the department’s Director-General Tommy Makhode was oblivious to the constitutional principles underlying the legislative amendments when he pushed for the mischievous proposal to allocate additional seats to political parties using votes cast for independent candidates falling short of the artificially high threshold. He said, “there is no practical system of which we are aware that would avoid this ‘wasted’ votes issue”. He also insisted that there was no unfairness in this and that those opposed to discarding votes have not offered an alternative solution.

What a disappointment! As far back as 1999, our liberation Struggle veteran Justice Albie Sachs wrote a critical Constitutional Court judgment. He reminded us that “the universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.”

The proposed formula to artificially increase the threshold for getting a seat in Parliament, allocate the remainder of votes cast for independent candidates to political parties, and not provide for the filling of vacancies midterm shows that this is not the framing of the electoral system envisioned in the Constitution. It is a bank vault for political parties enjoying the “gravy train”.

These unenforceable pledges to ensure uninterrupted representation of independent voters without filling vacancies midterm are like fluff in speculative election promises, a sop to gullible political party supporters. That the Constitutional Court forced the legislative amendment process is an added insult to the concept of discharging the duty to “respect, protect, promote, and fulfil”.

Undoubtedly, the courts will successfully articulate and vindicate our rights in the same way they did when political parties demarcated electoral boundaries based on voters’ political affiliations and without considering the views of the affected individuals.

Any incumbency-entrenching defects in the bill will be open to challenges in court and the ballot box in the same way the people of Merafong, Matatiele, Vhembe and others challenged the partisan demarcation of their municipal boundaries.