Africa-Press – South-Africa. The Constitutional Court is likely to be placed in a difficult position because of the 2024 election time frame, should President Cyril Ramaphosa sign the electoral bill into law. Michael Louis explains.
Close on 1000 days ago, our country’s apex court and final authority on constitutional matters handed down a judgment that caught the establishment and the political party bosses by great surprise. Since then, at every juncture, they have done all in their power to obfuscate, weaken, and dilute what the Constitutional Court intended: an overhaul of the system by which citizens elect – and hold to account – their public representatives.
In the ruling, the Court gave Parliament two years to remedy the Electoral Act to bring it in line with the Constitution. Since then, Parliament has acted irresponsibly in carrying out its duties, requesting at least two extensions on the limitation of the timelines, rushing the public participation process, and ignoring input from experts, civil society and the public.
On Thursday this week, Parliament is set to pass the Electoral Amendment Bill, a flawed and unconstitutional bill that will end up being legally challenged.
A disappointing experience
How did we get here? With almost two and a half years of input from numerous stakeholders, the Ministerial Advisory Committee, legal advisors from both Parliament and the Home Affairs department, the Independent Electoral Commission (IEC), political parties, civil society, and public participation submissions. Yet we sit in this position.
A bill will be passed that does not fulfil the constitutional values of human dignity and the values of accountability, fairness, responsiveness and openness and falls short of the required multi-party system of democratic government.
In the 29 years on democratic terrain, this electoral reform legislative process must rate as one of the most disappointing experiences. We are left with many unanswered questions, and some disturbing answers.
How did the Minister of Home Affairs ignore a Private Members Bill – tabled in Parliament in December 2019, before the Court ruling – and that satisfied all the elements of the judgment? The Bill was drafted in line with the Van Zyl Slabbert Commission to provide for constituencies and mirrored the majority recommendation of the Ministerial Advisory Committee Report.
Instead, the Minister instructed his legal team to draft a fresh bill within a month and without cabinet approval. Then, without cabinet or his party instructions, he sent the bill to Parliament. This was never queried. How can a Minister act alone and approve a system that, from the outset, could never work and be constitutionally compliant?
The Constitution requires substantive public participation at every stage of the law-making process. The public was given six weeks without any voter education regarding the bill. It was barely publicised and after personally attending several of these sessions, I can attest that they were a sham.
Even more disturbing is that after much outcry from civil society and public submissions as to the unconstitutionality of the bill, legal advisors to Parliament and the Home Affairs department argued, certified and confirmed its constitutionality until the very end. A total travesty of justice illustrates why so many bills end up being challenged at the Constitutional Court.
On the upside, the past five years have shown me afresh the greatness, passion and selfless commitment of civil society organisations and their love for this country and its people. As a collective, there is no stopping us. We remain committed to creating a people-centric dispensation and not a party-centric dispensation – with more accountability and the direct election of our leaders.
In this regard, we need as civil society to be courageous and continue our fight and not give up.
Parliament will pass this bill on 23 February, just days before the court deadline of 28 February. We may be facing a constitutional legal dilemma. Legal opinion has it that this deadline includes the President assenting to the bill via signature. Meaning the President has just 72 hours to consider and sign into law one a profound piece of legislation that affects the 2024 elections.
It is important for two reasons. One, the intense political nature of this bill. It is, after all, how those in power are elected and therefore considers many vested interests. And two, history has shown us that it takes on average, three to six months for a President to consider and pass a law. Not 72 hours.
The president’s two options
Section 79 of the Constitution regulates the role of the President in the law-making process. There are two options open to him. Once he receives the bill, he may either (a) assent to and sign the bill, or if he has reservations regarding the constitutionality of the bill, he may (b) decline and refer the bill back to Parliament with the grounds on which his reservations are based. If, following reconsideration, the bill addresses the President’s reservations he must assent and sign it. However, the President is not precluded from signing a bill even if his reservations are not all met.
The matter is complicated by the fact that Parliament itself has publicly stated that it needs more time to revisit electoral reform, as a concept, to make more comprehensive provision for accountability and direct elections of public representatives. That is why there is a sunset clause in the bill, which requires the Minister of Home Affairs to appoint an electoral reform panel once the bill is promulged.
History teaches us this is no safety net or guarantee. The past two decades, we had a conveyer belt of committees all recommending a constituency-based system where voters can directly vote for their representatives in Parliament as the most effective system.
The 2003 Frederik van Zyl Slabbert Report, the 2006 Parliament Report of MP Pregs Govender, the 2017 Kgalema Motlanthe High Level Commission, and most recently, the majority of the Ministerial Advisory Committee to the Minister of Home Affairs, chaired by Valli Moosa.
The Independent Candidate Association (ICA) had no option but to support the insertion of the panel, as we know there is no time to implement a constituency-based system before next year’s elections. However, our submission was that this panel should report to Parliament to avoid another two-decade stall on reform.
The other option is that the President can refer the bill back to Parliament on constitutionality concerns. To us, this is an exercise in futility as the same legal teams advising the President will be the same legal teams that advise Parliament.
To this end, the ICA has no alternative but to challenge this bill in court. Alongside other civil society organisations, we will serve legal papers as soon as the President signs it into law. We are applying for direct access to the Constitutional Court and, if granted, expect to be heard in three to six months’ time, meaning September 2023 is the earliest judgment can be made. This is unfortunate and will place the Constitutional Court in a difficult position because of the 2024 election time frame.
However, there is no other way. This is because should any political participant in the 2024 elections not be satisfied with the electoral result, their first remedy would be to challenge the constitutionality of the Electoral Act and, therefore the elections.
In the end, politicians will realise their futility in silencing the valuable input and contribution from civil society. We remain the arm bearers and act in their own interest, and are not their enemy. They will realise once again the collective voice of society is more powerful than any one party. They will learn that it is not in the hands of political parties to determine our next government or our future, but it has been and will always be in the hands of the people.
– Dr Michael Louis is Chairperson of the Independent Candidate Association (ICA)
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