IRR to Ramaphosa: 2024 elections at risk if you sign the EAB into law

11 November 2022

The IRR yesterday wrote to President Ramaphosa warning him not to sign the Electoral Amendment Bill if it is passed by the National Council of Provinces (NCOP) in its current form.

According to The Road to Electoral Reform, a report by highly respected independent elections analyst Mike Atkins, commissioned by the IRR and published this week, the current Bill fails in significant respects to meet the validity criteria set out in the Constitution, and the judgment of the Constitutional Court in New Nation Movement NPC and Others v President of the Republic of South Africa and Others.

The June 2020 judgment on the New Nation case created the incentive for Parliament to amend the electoral system by which Parliament is elected, the Court finding that it is unconstitutional for persons independent of political parties to be ineligible for election. Parliament was given until June 2022 to remedy this situation. However, as a result of Parliament essentially abrogating its responsibility in this matter to the Minister of Home Affairs, this deadline was not heeded. Missing the deadline set by the Constitutional Court has led to a situation in which the Electoral Amendment Bill was hastily drawn up and, in short order, put out for public comment, and passed by the National Assembly at some speed.

The Bill is currently before the NCOP, the period for public comment on it having closed on 9 November. The IRR submitted its opposition to the Bill in its current form, echoing the warning in The Road to Electoral Reform that a rushed legislative process risks the constitutional validity of future elections, and urging that the current draft law be scrapped, and that a constructive and deliberative process be launched to ensure the integrity of South Africa’s democracy.

In its letter to the President, the IRR writes:

“In terms of section 79(1) of the Constitution the President of the Republic of South Africa has the power to refer a bill back to the National Assembly for reconsideration should the President have reservations regarding the Bill. The IRR submits that the President should seriously and thoughtfully consider the Bill and refer the Bill back to the National Assembly in order for the glaring unconstitutional provisions and scope of the Bill to be reconsidered.

“Should the National Assembly not adequately address the concerns in the Bill, the IRR submits that the President should exercise his power in terms of section 79(4)(b) of the Constitution and refer the Bill to the Constitutional Court for a decision on its constitutionality. The IRR submits that it would be proper and prudent for the Constitutional Court to first determine the constitutionality of the Bill prior to adoption in light of the fact that the Bill stems from the Constitutional Court judgement in New Nation Movement NPC and Others v President of the Republic of South Africa and Others.

“In the interim the IRR proposes that the 2024 national elections be conducted in terms of the current and existing electoral framework and that the Bill first be corrected and the issues addressed prior to the adoption thereof.”

Says Hermann Pretorius, IRR director of communications: “South Africa risks sleepwalking into a democratic and constitutional crisis. If the right decisions are not now made to go back to basics and construct a fair and credible electoral system that meets the constitutional requirements, the consequences for our democracy will be dire. Imagine thousands of voters finding out only after they’d voted that their votes were discarded or given to a party they did not actually vote for. This is the stuff of election nightmares – the stuff of untrustworthy election results, unrest, and the populist denial of democratic outcomes.

“We have seen the consequences of elections where the outcome is susceptible to doubt. We have seen the damage done to politics and public trust when democracy itself loses the respect of citizens. If I could speak directly to the President, I’d say to him: ‘President Ramaphosa, don’t let your legacy be the decimation of the constitutional democracy you are rightly proud of having played a role in bringing about – show leadership and insist that Parliament does its job on electoral reform properly. Don’t sign this Bill. Send it back to Parliament and listen to the demands of civil society to see a fair and just electoral system put in place. If we rush now to have an inadequate system in place for the 2024 elections, those elections will be chaotic. Mr. President, you can ensure that electoral reform is done properly. It’s time to go back to basics and look beyond the immediate politics.’”

The NCOP is expected to vote on the Electoral Amendment Bill within the next few weeks, after which the Bill will go to the President for his assent. If the President signs the Bill, it is likely to face immediate constitutional and legal challenges.

Adds Pretorius: “The IRR will play its part in defending the integrity of our constitutional democracy. If that means going to court, so be it.”

Issued by Hermann Pretorius, IRR director of communications, 11 November 2022