Steamrolling through changes to SA’s electoral system an insult to democracy

South Africans have been given a dangerously limited opportunity to comment on the Electoral Amendment Bill, legislation that stands to fundamentally alter how Parliament is elected, says the Institute of Race Relations (IRR).

This objection is contained in a formal letter that attorneys acting on behalf of the IRR have addressed to Mr Mosa Steve Chabane MP, chair of the Portfolio Committee on Home Affairs.

The Committee published a call for submissions and comments on the Bill on 30 August 2022 with a deadline of 16 September 2022. This leaves South Africans wishing to participate in the key constitutional process of public consultation only 18 days to do so.

Such limited, box-ticking stunts by this Committee, or any other, are beneath the dignity and constitutional standing of Parliament and would be absurd with regard to any legislation, but the immense consequences of the Electoral Amendment Bill for the right of South Africans to vote make this truncated exercise of public consultation in name only an insult to democracy.

Says Hermann Pretorius, IRR director of communications: “The legislation under consideration forms part of a constitutional chain of events starting with the Constitutional Court’s 2020 decision that the Electoral Act was unconstitutional for excluding the election of members of Parliament not affiliated with political parties. Parliament was given 24 months to rectify the legislative situation, but when that deadline was missed in June this year, it became clear that Parliament had dragged its feet on this vital matter.

“This was in and of itself a shameful failure of the Committee and of Parliament. The situation has now worsened further with the decision to allow mere days for South Africans to make submissions. This is another failure to take democracy, the voters, and the decisions of our nation’s apex court seriously. Compounding this embarrassing constitutional fumble by Parliament is the fact that the Electoral Amendment Bill is riddled with uncertainties and legislatively fatal constitutional errors.”

Pretorius adds: “South Africans should be under no illusions: this entire process is a shambolic rush job that throws into chaos and doubt the very foundations of our hard-won constitutional democracy. Had Parliament acted responsibly and effectively to adhere to the Constitutional Court’s decision in 2020, we would not be in a situation where this flawed Bill is put to the public in this flawed manner.

“If the Committee and Parliament cannot bring themselves to show South Africans the respect afforded by the need for public input on legislation, one would have hoped they could at least show some respect for the democratic systems of our constitutional settlement. This matter deserved and deserves even now a wide-ranging, honest, transparent, consultative, collaborative, and inclusive approach in which the merits of various systems can be debated and subjected to scrutiny. As this legislative change cuts to the heart of constitutional democracy, the public should have been the prime consideration of Parliament, not a rushed afterthought.

“We call on the Committee and on Parliament to rescue this process before it derails even further. Further constitutional dead-ends and disaster can be averted, and the integrity of our elections preserved, but only if a halt is called to this panicky, ill-considered legislative scramble. If this is too much for South Africans to ask of its elected legislature, at the very least South Africans should be granted a sufficient opportunity to at least try and protect democracy from the incompetence of the parliamentary majority.”

Text of letter:

PARLIAMENTARY PORTFOLIO COMMITTEE ON HOME AFFAIRS

FOR ATTENTION:          MR MS CHABANE

CHAIRPERSON OF THE PORTFOLIO COMMITTEE ON HOME AFFAIRS

Dear Mr Chabane,

RE:         THE SOUTH AFRICAN INSTITUTE OF RACE RELATIONS // PARLIAMENTARY PORTFOLIO COMMITTEE ON HOME AFFAIRS

ELECTORAL AMENDMENT BILL - CALL FOR PUBLIC SUBMISSIONS AND COMMENTS

1.  We confirm that we act on behalf of the South African Institute of Race Relations (“our client”), which has instructed us to direct this letter to you. The South African Institute of Race Relations is a non-profit organisation, founded in 1929, that advocates for individual liberty, limited government, and the rule of law.

2.  We are informed that the parliamentary Portfolio Committee on Home Affairs (hereafter “the Committee”) has called for public submissions and comments on additional definitions and clauses in relation to the Electoral Amendment Bill [B1- 2022]. The comment period is seemingly open until 12:00 on Friday, 16 September 2022.

3.  The purpose of this letter is to highlight the irregularity and unlawfulness of the above-mentioned public participation process and to request the Committee to extend the period for public submissions and comments.

4.  Our client’s request that the period for public submissions and comments be extended is based on the following:

4.1.  The additional definitions and clauses entail more than 15 changes to the draft proposed Bill introduced on 10 January 2022. These additional definitions and clauses are not merely minor and inconsequential changes.

4.2.  The additional proposed definitions and clauses include technical aspects which require consideration by our client, other interested parties, and members of the public in formulating thorough and accurate comment.

4.3. The additional proposed definitions and clauses include amendments and revisions that will have potential legal repercussions which cannot be adequately considered and commented on in the truncated comment period.

4.4. The proposed amendments include “significant changes to Schedule 1A” which are substantive and have potential practical consequences.

4.5.  In the public participation process to date, the Electoral Amendment Bill has attracted very considerable public interest and many submissions. It is therefore unreasonable to expect all the stakeholders and interested parties to provide further public comment at such short notice.

4.6.  The Electoral Amendment Bill has far-reaching consequences for our constitutional democracy. It is therefore prudent and in the interest of all South Africans, including those who have not commented, or likely will not comment, that adequate time is allowed for those wishing to comment to do so.

4.7. Not allowing sufficient time for public comment discredits the process of adopting the Bill, which would affect the long-term credibility of the legislation.

IMPORTANCE OF PUBLIC PARTICIPATION

5. The Constitution of the Republic of South Africa makes provision for public involvement in law-making, oversight and other processes of parliament and the executive, thus allowing every citizen to have a say in matters that affect them. The most significant arena of public involvement in law-making is submissions and comments on legislative amendments, legislative adaptions and/or the implementation of new legislation.

6. Our Constitutional framework asserts public participation as one of the pillars of our democracy. Public participation creates a direct link between the public and the decision-makers in bureaucracy. At its most basic level, public participation is a way of ensuring that those who make decisions that affect South Africans’ lives have a dialogue with that public before making those decisions. Public participation is entrenched in our Constitution in several sections (namely sections 17, 59, 70, 72, 115, 118), which set the tone for public involvement and participation in the legislative and executive decision-making process. Moreover, the Legislative Sector Policy and Strategic Framework sets “deepening public participation and representation” as a goal.

7. Public participation is an essential element of democracy and responsive government. In the matter of Doctors for Life v Speaker of the National Assembly¹, the Constitutional Court held as follows: