By Prof. Bheki Mngomezulu
On April 17, President Cyril Ramaphosa signed into law the Electoral Laws Amendment Bill (B1-2022) to become Act 1 of 2023. The law will allow independent candidates to participate in the national and provincial elections for the very first time in the upcoming 2024 general election. This signing marked the culmination of a long process which began in 2020.
On June 11, 2020, having listened to both sides of the argument, the Constitutional Court declared the Electoral Act (No. 73 of 1998) unconstitutional to the extent that “it requires that adult citizens may be elected to the National Assembly and provincial legislatures only through their membership of political parties.” This meant victory to the litigants. Following this historic ruling, Parliament was given 24 months to address this issue. The aim was to have the Electoral Act amended in time before the next general election scheduled for 2024.
For some reason, there were delays in the implementation of the court ruling. It was not until January 2022 that Minister of Home Affairs, Dr Aaron Motsoaledi, introduced the Bill to Parliament for consideration. Given this time lapse, Parliament was forced to approach the Constitutional Court twice in order to ask for an extension – which was granted. Public consultation was factored into the calendar that was going to be followed by Parliament.
When the National Assembly and the National Council of Provinces (NCOP) debated the bill on February 23, there were still differences of opinion among MPs. This did not come as a surprise, especially given the fact that MPs represent different constituencies.
Following strong arguments for and against the bill, eventually, the bill was passed with the support from the ANC, EFF, GOOD Party and Al Jam-ah. Given the fact that 14 political parties are currently represented in Parliament, it is concerning that only a few of them found the bill satisfactory in its current form. Others were not convinced. As such, they were vehemently opposed to the bill being passed. This increased prospects for possible litigation once the bill was signed into law – which is where we are right now.
As per the Constitutional imperative, from the National Assembly, the bill subsequently landed on the President’s desk for his consideration. He had three options: to seek legal opinion about the bill’s constitutionality; to refer it back to Parliament for further deliberation; or to sign the bill into law. It is now history that the President went for the last option.
What was interesting was the President’s statement and excitement about this historic event.
He averred: “The Electoral Amendment bill marks a significant milestone in the evolution of our democracy by expanding electoral participation and widening the pool of leadership choice for the National Assembly and provincial legislatures.”
The question becomes: can this optimism be sustained? Moreover, does the signing into law of this bill mark an end to the concerns that have been raised in different quarters (including political parties) about certain aspects of this bill? Unless answers to these questions are in the affirmative, this is not yet the time for us to celebrate.
Firstly, the minister of Home Affairs must now establish the Electoral Reform Consultation Forum. Intriguingly, this panel is expected to make non-binding recommendations on potential reforms of the country’s electoral system. Such reforms (if adopted) would shape elections post the 2024 poll. Now, if the recommendations are not binding, what guarantee do we have that such proposed reforms will see the light of day? If such recommendations are not adopted, how will the process unfold?
Secondly, there are time constraints. Given the fact that South Africa will go to the polls in 2024, there is no way that a mixed constituency proportional list system could be in place in time for that election. Therefore, we can brace ourselves for the turbulent! Thirdly, another concern is that the new law will disadvantage the very same independent candidates who are supposed to be its beneficiaries. For example, if an independent candidate secures most votes and qualifies to have a PR seat or seats, will that happen or will the PR seats go to political parties? Should that happen, there will always be a possibility for litigation.
Fourthly, smaller parties have been making huge demands even if they only have one seat. Drawing from this experience, how sure are we that independent candidates will not do the same once they have been elected?
Lastly, the IEC’s budget has already been cut. This means that it cannot do certain things even if it wants to. Will the IEC have enough money to assist in the implementation of the Constitutional Court ruling on the electoral amendments? Therefore, it is too early to celebrate!
Prof. Bheki Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy at the Nelson Mandela University.