No clarity on electoral law reform as Motsoaledi talks marriage, border security, new voter management devices
Revising the electoral law to allow independents to contest national and provincial elections is possibly the most important legislative initiative not only for Home Affairs, but South Africa. Yet Home Affairs Minister Aaron Motsoaledi barely touched on this during Wednesday’s Budget Vote.
Many ministerial speaking minutes were spent talking about changes to the marriage regimen, currently set out in three different acts, and border management, where the Border Management Authority – “the cornerstone of our efforts to improve security at borders” – got a final allocation of R120-million, rather than R28-million.
While Home Affairs Minister Aaron Motsoaledi told Parliament his department had “many initiatives in the pipeline; some are legislative and policy initiatives which will soon arrive in this Parliament for processing”, no timeframes for any such tablings were given.
But the clock is ticking on the electoral law amendments arising from the June 2020 Constitutional Court judgment that independents can participate in national and provincial elections.
The Constitutional Court gave Parliament two years – until June 2022 – to adopt and pass such amended electoral legislation.
All Motsoaledi said was that those who said he wasn’t serious were mistaken, and that a draft bill would be “with me early in the next quarter”. That could be any time from July to the end of September.
The ministerial task team appointed in early May had held consultations. “They’ve already started to work on a draft bill. They intend to present the draft bill to me early in the next quarter.”
More detail emerged when Motsoaledi talked about the 40,000 new voter management devices which the Electoral Commission of South Africa (IEC) had acquired to replace the old machines. The new devices show votes cast in real time and thus “preclude any chances of voting twice”.
But the ministerial fudginess on timeframes – once Motsoaledi gets a draft bill he still has to take it though Cabinet, which can take several months – has already made it exceedingly difficult, if not impossible, for Parliament to pass electoral amendments by the Constitutional Court deadline of June 2022.
On average Parliament takes two years to process a bill, and that’s without an election like the 2021 municipal poll taking time out of a busy parliamentary calendar.
Electoral law amendments are more complex given that a new system accommodating independents would have to be in place by the 2024 elections – and the IEC would require time to adjust its own systems during its traditional election preparations cycle that starts well over two years before an election.
Parliament’s Home Affairs Committee received its first briefing from Motsoaledi soon after the 10 June 2020 Constitutional Court ruling. When, by later that year, nothing had emerged from the ministry, MPs turned to the Private Member’s Bill from Cope leader Mosiuoa Lekota, which effectively puts into play a mix of directly elected legislators, with a proportional representation element, dating back as far as the 2003 Frederik van Zyl Slabbert commission.
Following Lekota’s briefing in early February, the matter has been left in abeyance, even if it remains a solid back-up. Lawmakers disregard the time pressure at their own peril. It is an embarrassment for the national legislature to approach the Constitutional Court to request an extension – it is possible, and it had been done previously – because Parliament could not do its job on time.
While there is nothing to stop Parliament from proceeding with a Private Member’s Bill, or a committee bill, MPs traditionally have bowed to ministers to initiate draft legislation. Yet Motsoaledi has not yet done so, 11 months into a 24-month deadline.
When, in August 2020, Home Affairs Committee staff presented a timeline, Motsoaledi dismissed the various scenarios because they were based on no constitutional amendment being required, asserting that this was part of his policymaking realm.
In early October 2020 the minister requested the cancellation of his briefing to MPs on the electoral legislative changes because there was little new to report.
On 9 February 2021 Motsoaledi told the Home Affairs Committee a policy had been drafted – five electoral systems were studied – but would only come to lawmakers after Cabinet approval. That was expected in mid-March following a special meeting of the security cluster ministers, according to Parliamentary Monitoring Group minutes of that 9 February committee meeting.
And then on 3 March Motsoaledi announced an eight-strong task team of past and present electoral commissioners, academics and lawyers, chaired by ex-minister and ANC veteran Valli Moosa. In making that announcement, Motsoaledi did not provide a deadline – the task team would “advise me as we work towards complying with the Constitutional Court judgment”.
On Wednesday all that emerged was that the task team intended to present the minister with a draft bill early in the next quarter, or any time from July to the end of September.
The ANC was supportive.
“Collectively with the minister and the task team [the committee will] respond to the timeframe outlined by the Constitutional Court,” said acting committee chairperson ANC MP Mosa Chabane.
ANC MP Tidimalo Legwase emphasised the requirement of proportionality in any amended electoral system. “As the ANC we are committed to the Constitutional Court judgment and implementing it in the given timeframe.”
Opposition parties rather focused on the “dysfunctional” and “incompetent” Home Affairs Department battling to deliver services from IDs and passports to border management.
IFP MP Liezl van der Merwe described the heartbreak for many needing an ID for work or to access social support as “perpetually offline” systems were synonymous with the Department of Home Affairs, where officials continue to fraudulently sell IDs.
“[For] many, visiting a Home Affairs office means taking a day off work, only to queue for hours on end, and then to be told to come back tomorrow because the systems are offline again,” Van der Merwe said.
“We know that corruption is eating away at the heart and credibility of [Home Affairs]. Some will tell you with pride how they only need to save a few rand to buy a South African document.”
Home Affairs, which by 2017 was moved into the security cluster in Cabinet rather than governance, is battling on many fronts. And its delays to amend the electoral law in line with the Constitutional Court June 2022 deadline has upped the potential for a snarl-up.
It will take a huge effort by lawmakers to meet that Constitutional Court deadline. DM