The Electoral Act is a fabulous demonstration of incumbent bias — or to put it another way, how existing systems resist change. But in a style not atypical of the existing government, amendments to the act have been done in a way that’s so ham-fisted and preposterous that the chances they will be overturned by the courts are extremely high.

The reasons are technical, but trust me, they display a kind of cunning duplicitousness that makes your blood boil. And the significance of this is important because for once, the battle is not between parties within Parliament, it’s in effect a battle between civil society and all parties in Parliament collectively.

Allow me to explain. (Full disclosure: I was assisted here by Daryl Swanepoel, the CEO of the Inclusive Society Institute; the facts are his, but the opinions are mine). Essentially, the legislation seems to be an attempt to pretend to adhere to the Constitutional Court’s instruction to allow independent candidates to stand — a requirement first investigated almost a decade ago — but actually it tries to prevent independent candidates from standing. It’s all very self-serving.

There are two main problems with the legislation: it’s unequal in its application and it’s heavily weighted against participation. Internationally, independent candidates have never really done well in proportional representation elections. But despite the small threat, large parties have decided they just don’t want the competition, so along with the innate bias against independent candidates, they make it even more difficult.

Just to demonstrate the cynicism involved here, consider this: The draft legislation required independent candidates to present to the Electoral Commission of SA (IEC) about half the number of signatures required to get elected. In the 2019 election, about 17.5 million people voted, which means you would need 43,500 votes to get a seat — and about 22,000 signatures just to get on the ballot.

But there was a problem here: the existing legislation at the time required political parties to have only 1,000 signatures to get on the ballot. Civil society organisations argued the new requirements were unfair. So what did the politicians do? They didn’t decrease the number required for independents to the then existing level for parties; they increased the number of signatures political parties now require to the newly established level required for independents.

This number was reduced slightly from the original legislation, I presume, to allow politicians to claim, disingenuously as it happens, that they are listening to civil society’s complaints. Hence, the number was reduced to about 30% of the votes required to get a seat, so call it 14,000 signatures.

Do the maths here. Let’s assume you, as a potential independent candidate, went out and canvassed potential voters to try to get their support (and this is just to get on the ballot). They would probably ask you about your policies and your history and your opinions and so on. So let’s assume you spend about 10 minutes on average with everyone who eventually signs your application, and allows you to make a copy of their ID.

Working eight hours a day, getting those signatures would take roughly 10 months. Obviously, there might be quicker ways to do it, but the legality is not clear. You could ask people to submit their support by email. But we don’t know whether the IEC will accept electronic signatures. It normally does not because of the danger of fraud, so you will need physical signatures.

The problems for potential independent candidates don’t end there. You can stand as an independent in all provinces, but you can only stand on the provincial list. That means, to get elected, you will need the required number of votes in one of the regions; you cannot add your support from all provinces into a single tally. In other words, if you stand in all provinces and get 10,000 votes in each province, that would be 90,000 votes in total. Normally that would be sufficient, but in fact, you have to get at least 43,000 votes in one of the provinces to actually get elected.

The situation is different if you are, say, a small political party — then your votes do accumulate. So if you get 10,000 votes in each province, you will get two seats in Parliament; it’s transparently unequal.

And, ladies and gentlemen, it doesn’t end there. Let’s say you do stand in all provinces, and you get 10,000 votes in each province; 90,000 votes in total. In terms of this legislation, you are not elected. So, what happens to those votes? If I understand it correctly, they get allocated proportionally to the other parties.

And who does that benefit? Surprise! It benefits the larger parties to a disproportionate extent because a proportional distribution cannot be fair unless all the remaining parties win the same proportion of the vote. There are other problems too because, as usual, the public participation aspect of the legislation was inadequate, and the civil society contributions were largely ignored.

You could argue that this is not a particularly important issue in the grand scheme of problems faced by South Africa. How many independent candidates are likely to stand and get elected? In the best of circumstances, call it 10, maybe 20? That’s really not going to shift the needle.

But I would argue the opposite. By weighting the legislation against independents in such a cynical and transparent manner, it illustrates something very dark about our political system. And that darkness is fear. It is the fear that is a consequence of the failure to live up to the standards of representation required by our society. And it illustrates a perennial truth: when politicians feel their position is under threat, they shift the goalposts. If they weren’t under threat, they wouldn’t bother. But the very fact they have, demonstrates they are. DM/BM