The Electoral Act and the Need for Electoral Reform - Back in Court Again

28 August 2023

The challenge of the new Electoral Act by the Independent Candidate Association of South Africa (ICA), which will be heard in the Constitutional Court next week, illustrates some of the great strengths and dismal weaknesses of our democratic system.

Firstly, it shows the role that civil society can play in insisting that the Government must abide by the precepts of the Constitution. Three years ago, the New Nation Movement took the Government to the Constitutional Court because the 1998 Electoral Act did not make provision for independent candidates to stand in national and provincial elections. New Nation pointed out that Section 19(3)(b) of the Constitution provides that “every adult citizen has the right - to stand for public office, and if elected, to hold office”. However, in terms of the Electoral Act, only members of registered political parties were entitled to stand for election in national and provincial elections.

The Constitutional Court agreed. It declared that the Electoral Act was unconstitutional “to the extent that it requires that adult citizens may be elected to the National Assembly and Provincial Legislatures only through their membership of political parties.” It gave Parliament two years to remedy the defect.

Great. This is how a constitutional democracy is supposed to function.

The result was the new Electoral Act, which was signed into law on 17 April this year by President Ramaphosa. Sadly, this is where the weaknesses in our system became very evident.

Optimists thought that the Constitutional Court’s order presented Parliament with a wonderful opportunity to address long-standing deficiencies in the electoral system - in particular, the purely proportional list system - which meant that MPs were accountable, not to the electorate, but to their party bosses. In terms of Section 47(3)(c), members of Parliament could be booted out of their seats if they lost their membership to the political party on whose list they had been elected.

This gave political leaders an absolute stranglehold over their members and, in effect, led to the erasure of the lines of separation that should exist between the executive and legislative branches. This, in turn, was one of the main reasons for Parliament’s dismal record in carrying out its oversight role, particularly during the worst episodes of state capture.

The Zondo Commission detailed various instances where Parliament had failed to take steps to expose state capture that had cost South Africans R58 billion. One of the solutions proposed by Judge Zondo was electoral reforms that would give people more power over members of Parliament.

Sadly - but perhaps predictably - Parliament did not rise to the occasion. The Government ignored the recommendation of the majority on the Ministerial Advisory Committee on Electoral Reform, which wanted a mixed-member model incorporating single-member constituencies. Instead, it opted for the minority’s preference for a “slightly modified” system in which independent candidates would be accommodated in multi-member constituencies based on the nine provinces.

The new system was entirely unacceptable to the ICA, primarily for the following reasons:

Candidates will be elected if they receive a previously calculated quota of votes for the 200 parliamentary seats that are elected on a regional basis. However, votes for independent candidates that exceed this quota will simply be lost – and will be redistributed among political parties for the 200 seats that are allocated on a compensatory basis to assure proportional representation. Moreover, all votes cast for candidates who are members of political parties will accrue to their parties for the purposes of proportional representation. All of this means that independent candidates will, on average, require 88 000 votes for a seat while political parties will need only 45 000. This will result in a constitutionally unacceptable situation in which votes cast for independent candidates will have considerably less value than those cast for members of political parties.

Should successful independent candidates vacate their seats as a result of death or retirement, the Act requires a recalculation of representation that could result in their seats being filled by members of a political party instead. As by-elections in provinces will be particularly difficult and expensive, the ICA is proposing that vacancies should be filled by the independent candidate who received the next highest number of votes.

Independent candidates will be able to stand in all nine regions, but their votes cannot be aggregated. So even if an independent candidate receives 90 000 votes throughout the country, but fails to achieve the necessary quota in any of the regions, he/she will still not win a seat. The surplus votes will then be redistributed to political parties.

Independent candidates will be required to obtain signatures of 15% of the quota required for election in the nine regional constituencies. They would have to collect between 10 271 and 13 890 signatures, depending on the region in which they stand. There is no requirement for candidates representing political parties to collect any signatures at all – although, in the past, smaller political parties had to collect 1 000 signatures.

The ICA has calculated that independent candidates standing for election for the 200 regional seats will require on average 91% more votes than political party candidates who are elected for the 200 compensatory proportional list seats. This, in their view, is another flagrant breach of the fundamental principle that all votes in democratic elections should be of equal value.

They have suggested that the problem can be resolved without disrupting the 2024 elections by increasing the number of seats that will be elected on a regional basis to 350 and by reducing the compensatory proportional seats to 50. This will still mean that independent candidates will have a 10% disadvantage in the elections – but it presents a workable solution for the 2024 election.

The ICA is asking the Constitutional Court to declare the Electoral Act invalid - but to suspend the declaration for 36 months to enable Parliament to adopt a new Electoral Act that is fully compliant with the Constitution – and that, it hopes, might include provision for constituencies. In the meantime, the ICA wants the Court to order that their 350/50 seat proposal should apply for the 2024 elections for the National Assembly.

In adopting the new Electoral Act, the Government has done everything it can to circumvent the Constitutional Court’s 2020 order. It clearly wants to limit the prospects of independent candidates in future elections. It also wants to avoid electoral reform that will make members of Parliament accountable to the voters of South Africa - rather than to itself. This, as Judge Zondo has pointed out, is one of the main reasons for the failure of Parliament to properly carry out its core duty of holding the executive branch accountable. Its poor performance in carrying out this core responsibility has been one of the greatest weaknesses of our democratic system.

Let’s hope that the ICA’s case will open the way – not only to the right of independent candidates to stand in national and provincial elections in a meaningful manner – but also to much needed reform of our entire electoral system.

Issued by FW de Klerk Foundation, 28 August 2023