The National Assembly, having operated with a handbrake on for two years, is now fast-tracking the passage of the Electoral Amendment Bill to meet the new deadline granted by the Constitutional Court last month.

In delivering the New Nation Movement judgment in June 2020, the top court gave Parliament 24 months to amend electoral laws to make it possible for independent candidates to contest national and provincial elections. Parliament has now been granted an additional six months to effect the necessary changes.

Both Parliament and the Minister of Home Affairs came in for serious condemnation from Acting Justice David Unterhalter, on behalf of a unanimous court which described their conduct as “dilatory … [and] to be deprecated”. Despite these failures, the court granted the extension order in the interests of justice.

While the judgment in the initial New Nation Movement case focused on the narrow issue of independent candidates, it should have opened the door to a thorough review of the current electoral system. That closed party list system under which political parties exert total control over “their” MPs has been exposed at the Zondo Commission for having been – at least partly – responsible for Parliament’s numerous failures to hold the President, the executive and organs of state to account.

Chief Justice Zondo has laid bare before the nation the extent of this accountability deficit and how it has undermined other fundamental constitutional principles. 

So debilitating is this deficit that it led Zondo to recommend that Parliament should consider introducing a constituency-based (but still proportional) electoral system to enhance the capacity of MPs to hold the executive accountable. He also raised the option of having a directly elected President, but that is an issue for another day.

It was only in March 2021, nine months after the Constitutional Court’s judgment, that the minister appointed a Ministerial Advisory Committee (MAC) to consider and advise him on options for electoral reform. Unterhalter writes, “the Minister provides no explanation for what transpired from June 2020 to February 2021 when the MAC was appointed … the Minister did not, in fact, take all reasonable measures to give effect to the order”.

The MAC, chaired by former minister Valli Moosa, put forward two options. A constituency-based system with 200 single member constituencies and 200 members elected through a proportional representation list system was favoured by the majority of the MAC members.

The minority was in favour of what is euphemistically called the “minimalist” option, which simply seeks to permit independent candidates to contest elections under the current pure proportional representation list model. It seeks to do as little as possible to change the system while hoping that it will satisfy the court’s judgment – what one may call malicious compliance.

It is proving to be far more difficult than its originators assumed. 

There is no similar model anywhere in the world, and the world has many, many different electoral models. No one else has thought it to be a good idea. It was not advanced in any of the submissions received by the MAC. It is akin to forcing a square peg into a round hole. 

To properly and fairly accommodate independent candidates, as well as to enhance levels of accountability, some form of constituency system is clearly necessary.

The draft bill currently before Parliament is premised on the “minimalist” option – it is both inherently unfair to independent candidates, and favourable to especially larger political parties. 

Even Parliament has implicitly acknowledged its possible constitutional shortcomings by telling the Constitutional Court that it will pass the legislation by September 2022 so that the president has “sufficient time to refer the bill back to Parliament for the concerns to be considered”.

The bill was only introduced in Parliament in January this year, six months before the deadline, leaving little time for meaningful public engagement. 

It is abundantly clear that political parties, especially those currently represented in the National Assembly, are resistant to significant electoral reform. 

Once the bill was referred to the Home Affairs Committee, public submissions, written and oral, were received by the committee. Shortly after this exercise was completed, a hastily arranged provincial public participation roadshow got under way. The public were neither adequately notified of these hearings, and nor were they given sufficient time and information to make meaningful submissions.

Anecdotal evidence reveals that several participants merely read out scripted messages in support of the bill. It is therefore likely that Parliament failed in its constitutional duty to facilitate public involvement in its legislative processes.

The dithering by Parliament and the minister has created a potential crisis. 

The Electoral Commission of SA (IEC) told the Constitutional Court that the bill must be passed and assented to by the President this year if it is to have sufficient time to prepare for the next elections, which must be held between 22 May and 14 August 2024.

The IEC had, in August 2020, told the Home Affairs Committee that if a constituency-based system is to be introduced, the necessary legislation would need to be in place by October 2021. That ship has sailed, for now. If a constituency system is to be considered, as it should be, that will not be possible for 2024.

The scenarios that present themselves are therefore as follows:

1. The bill, largely in its current form, gets passed by Parliament. Whether or not the President refers it back to Parliament, there is likely to be a constitutional challenge from some other quarter. That will challenge the lead time required by the IEC to properly prepare for the 2024 elections.
2. Parliament may seek condonation from the Constitutional Court to run the 2024 elections on the current system with a firm commitment by Parliament that a proper review of the electoral system be conducted, and that the new electoral model will be ready in good time for the 2029 elections. This will receive short shrift from the court, which has already said that “on no account, may the next election take place without independent candidates being able to offer themselves for elected office”.
3. An alternative may therefore be that the court be approached to condone the possible defects in the legislation as finalised by Parliament, that the 2024 elections be run on this basis, but that a further review be urgently undertaken by Parliament following those elections.
4. In the recent extension case, the New Nation Movement and another party, Ms Chantal Revell, urged the court to invoke its “reading-in” powers to amend the Electoral Act to accommodate independent candidates. The court was of the view that this was not warranted “at this point of the parliamentary process”, and that this is a “policy-laden” process which Parliament is best equipped to address. The court may have to revisit this view if Parliament fails to pass a constitutionally compliant law within the extended timeframe.
5. A possible delay to the 2024 elections has been mooted but we know from the attempt to delay the local government elections in 2021 beyond the constitutionally permitted window, that the courts are reluctant to entertain such requests.

None of these scenarios is good for our democracy. Elections are the lifeblood of our constitutional order, giving sustenance to the allocation of powers and responsibilities to institutions of governance, especially the legislature and the executive. Yet it is those two institutions that have failed us now.

This is a once-in-a-lifetime opportunity to get our electoral system right. 

Given the inherent conflicts that political parties have in choosing the rules of the game – while the voters are left with the thin edge of the wedge once again – it is no wonder that Mcebisi Jonas has postulated the idea of a referendum to determine the electoral system.

It should be that it is the voters who determine the electoral system, whether through a comprehensive and satisfactory public participation process or through a referendum. In the earlier round of public submissions, all – bar one submission from Cosatu – rejected the bill as it’s currently framed. Yet Parliament went ahead regardless, ignoring those views.

It is time for the people to speak, be heard and determine their democratic future. MC/DM

Lawson Naidoo is the Executive Secretary of the Council for the Advancement of the South African Constitution (Casac).