Africa-Press – South-Africa. Parliament was given two years to amend the Electoral Act. It has not acted in good faith in handling this constitutional and legal duty and will now miss this deadline, writes Michael Louis.
On Saturday, the most important deadline for the 2024 elections, set by the Constitutional Court, will expire. It is expected that Parliament, after ducking and diving for the past two years, will miss this deadline and be in contempt of court. Every South African should be concerned with this matter as it impacts the heart and soul of our young democracy.
Exactly two years ago, on 11 June 2020, the Constitutional Court handed down judgment and ruled that the Electoral Act is unconstitutional to the extent that it does not provide for citizens to be elected to the National Assembly and Provincial Legislatures as independent candidates. By requiring someone to submit to a political party in order to run for election, the Electoral Act was ruled to be in conflict with Section 19 of the Constitution. All laws in South Africa must be in accord with the Constitution.
Therefore, Parliament was given two years to amend the Electoral Act. It has not acted in good faith in handling this constitutional and legal duty and will now miss this deadline. There is no plausible justification for this. Instead, Parliament has played a game of perpetual delays and futile public tick box exercises. In short, Parliament has not acted in the spirit of the judgment, and the people of South Africa must know this.
READ | Valli Moosa: My vote must actually countWhy is this particular change in law so important? Because it changes the very way, we elect people to government. And all this is bad news for political parties and career politicians. It is a real example of the adage “turkeys voting for Christmas.” They do not want this change as it will affect their job security and cushy salaries.
But this approach is short-sighted. The path to a new electoral system started long before the Constitutional Court judgment of 2020. It would be wise for political parties to realise that change is imminent and come to the table to craft a new system we can all be proud of.
Long road
The legal process began in May 2017, and the first court application I lodged on 5 December 2017. It has been a long road consisting of three high court hearings, two letters of mediation, and three constitutional court hearings. Multiple people have been involved in the process; this is not a singular journey: seven applicants, two amicus curiae, 12 advocates, and three professional advisers.
In support of this, there has been 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.These all have one thing in common: recommending a constituency-based system where voters can directly vote for their representatives in Parliament as the most effective system. And this is where the bad faith from political parties in Parliament enters.
but all for a reasonParliament is not trying to give the public the best version of electoral reform. It has become quite clear in recent months that the agenda of the party politicians is to give themselves an unfair advantage in the next election. They are gerrymandering the bill. The party politicians are desperately trying to protect themselves at the expense of national interest. In effect, Parliament is abusing its power. As participants in this process, we have concluded that our only hope is in the courts. The bedrock of a functioning democracy is in the principle of separation of powers and strong checks and balances. Our constitutional court has demonstrated that they are willing to uphold the Constitution above all.
Legal Challenge
As a social movement, we will not turn our back on the potential statesmen and stateswomen who feel called to represent their constituency in Parliament. Indeed, this is the most significant reform of our democracy since ’94, considering that for the first time in democratic history the people of South Africa will be able to directly choose the 400 people that they deem worthy to go to Parliament and serve the nation. This will be the way that we finally get a government that works to serve the people.
A case in point is Princess Chantal Revell of the Khoi San people in the Northern Cape. She has approached the courts before and will be doing so now on our behalf – submitting opposition to the extension application by Parliament. Her application is based on three grounds.Unfair process By ignoring the above-mentioned commissions and panels, and by casting aside Honourable Mosiuoa Lekota’s Alternative Bill, Parliament has arrived at its own version of a new bill in a manner that has been unfair, arbitrary, and irrational. The process that led to the current bill was a classic example of cutting corners, and no one can fully articulate the rationale behind many of the choices made. Government took a mere five weeks to draft its version. In all the public consultations held by the minister’s advisory committee in 2021, not a single member of the public, academic experts, or civil society organisation, no entity whatsoever had proposed the system that currently features in the bill. This, therefore, begs the question as to what drove the decisions to push this bill forward. The motives are clearly those of protecting party interests, not the public interest.
UnconstitutionalityThe current bill proposed by Parliament is unconstitutional for at least three reasons. Firstly, it violates a fundamental voting principle, namely “one man, one vote.” In this bill, many votes are discarded and disregarded simply because they go to an independent candidate.
Secondly, the bill has jettisoned the principle of equality enshrined in our Constitution and created a much higher threshold for independents than for political parties. It is prejudicial by design towards independent candidates.
Thirdly, the bill limits independents to only 200 out of the 400 available seats for no justifiable reason aside from the fact that they are not in a political party. In essence, it reserves half the seats in Parliament for political parties – regardless of the outcome of an election and the will of the people.
Parliament was made aware of these issues. Three legal counsel submissions were submitted to the standing committee, and to date, they still have not been considered. This is more evidence that Parliament is not genuinely interested in a process that is reasonable and rational.
Flawed public participation process The public participation process followed by Parliament was riddled with errors and fundamentally flawed. There was (1) a failure to educate the public on the process, (2) refusal to place the two options before the public, (3) abuse of the process by political party deployees, and (4) failure to communicate programme and venues in a timeous manner. In the making of laws, it is important to make sure that the public is meaningfully engaged. Lawmakers are representatives of the public, after all and those who govern do so with the consent of the governed. We, therefore, believe that the public process to date has been fundamentally flawed. 2024 election at riskParliament is once again trying to buy time, and they have approached the Constitutional Court seeking an extension of six months. We cannot and must not allow Parliament to continue on the trajectory of dithering and delay. We must not allow for another six months to pass while there is an unconstitutional bill and electoral system that does not fulfil the will of the people.
We ask the expertsThese delays add up and put the 2024 elections at risk of delay or at risk of being held under an unconstitutional electoral act. Unfortunately, the courts can only be approached after the new bill has been passed by both the National Assembly and the National Council of Provinces and signed by the President. This will take another year at least and reduces the available time for the IEC to implement a reformed electoral system. Urgent intervention is needed and that is why the collaboration of civil movements, and civil society needs to put their energy together to show Parliament that we deserve better. We believe a type of “Electoral CODESA” must be held with all interested stakeholders to discuss the status quo and the way forward on a total overhaul of our electoral system. In the words of Buckminster Fuller: You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.This should guide our approach in formulating a new system for generations to come.
– Dr Michael Louis is Chairperson of the One South Africa Movement (OSA).To receive Opinions Weekly, sign up for the newsletter here.
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