Prof. Bheki Mngomezulu
On June 11, 2020, the Constitutional Court delivered judgment in favour of the New Nation Movement and others that the Electoral Act (No.73 of 1998) was unconstitutional.
The thrust of the argument was that this Act stated that people could only contest elections as members of political parties. This excluded those who might have wanted to contest the elections as individuals or as “independent candidates.” Parliament was instructed to correct this anomaly.
In response to this judgment, and to remedy the situation, the Electoral Amendment Bill was tabled in Parliament. It went through all the stipulated stages where it was passed, albeit with some Members of Parliament (MPs) and civil society expressing their dissatisfaction.
On April 17 this year, President Cyril Ramaphosa signed this bill into law. This was supposed to close the chapter and allow the Electoral Commission of South Africa (IEC) space to prepare for the 2024 general election. However, the opposite happened.
The Independent Candidate Association South Africa, together with like-minded organisations and individuals such as Mmusi Maimane approached the apex court to challenge the amended Act.
After many arguments for and against the retention of the Electoral Amendment Act in its current form, on Monday the Constitutional Court finally ruled on the matter, thereby giving the IEC a green light to proceed with its preparations for the 2024 general elections.
Of the many issues which formed part of the argument was the 200/200 (or 50/50) split of the seats. This meant that 200 seats were described as regional or provincial seats while the other 200 seats were described as competency or national seats.
Those who were on the side of the independent candidates argued that this 200/200 split disadvantaged independent candidates. Instead, they preferred a 350/50 split and thus asked the court to change the formula.
Unfortunately, the majority decision of the Constitutional Court was that the Act in its current form passed the constitutional litmus test and ruled that it must stay.
The second concern about the Act was that it required independent candidates to obtain 15% signatures in the region for them to qualify to contest the election. This quarter system meant that independent candidates would need anything between 10,000 and 14,000 signatures to be eligible to contest the election. This did not include the threshold of the number of votes they would need to get a seat.
On this issue, the Constitutional Court agreed that the quarter system or the 15% requirement was irrational. As a remedy, the court ruled that independent candidates only needed 1,000 signatures to qualify to contest an election. This ruling was applauded by the complainants.
However, they must still pay anything between R15,000 and R20,000 while political parties will pay a higher figure of up to R300,000.
This ruling will breathe new life into our electoral process in this country since the advent of democracy in 1994. For example, on voting day, for the first time, voters shall be issued three ballot papers as opposed to the conventional two, one for national and one for provincial elections.
These shall be as follows:
*One ballot to cast a vote for an independent candidate or party in the provincial legislature.
*One ballot to cast a vote for the 200 regional seats contested by independent candidates and political parties.
*One ballot to cast a vote for the 200 compensatory seats for political parties.
Surely, this is not necessarily a perfect arrangement which is likely to satisfy everyone. However, the Constitutional Court judges tried their level best to ensure that they balance things.
Firstly, the court had to ensure that the elections are not delayed due to technical issues and that the work of the IEC was not negatively affected. This would have deprived the entire electorate of the opportunity to exercise their constitutional right to elect their leaders.
Secondly, the court could not turn a blind eye to the concerns raised by independent candidates and those who supported them in highlighting their areas of concern. This would have infringed on their rights. Therefore, these concerns had to be subjected to constitutional scrutiny so that even if the final verdict did not favour the complainants, at least they could see that their concerns were not ignored.
Thirdly, the court wanted to guard against any potential accusation of judicial overreach by interfering on the operations of parliament. As the Constitution states, government is divided into three arms: the executive, legislative, and the judiciary. These must be kept separate while all being expected to uphold the constitution.
Based on the facts and analysis presented above, it is safe to say that the Constitutional Court judgment will strengthen our nascent democracy. The court considered all the concerns.
*Prof.Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy at the Nelson Mandela University.
**The views expressed do not necessarily reflect the views of Independent Media or IOL