A political mess that is the new electoral law
While many in our commentariat (this member included) are obsessed with the possible results of next year’s elections, it is still not clear exactly how those polls will work and which votes will be counted. This is unprecedented in our democratic history.
Up until now, South Africa’s electoral system has been relatively simple and virtually every vote led to parliamentary seats being allocated. Now, it is likely that the electoral system under the new law will be challenged in court, with voters and the Electoral Commission of South Africa (IEC) at this stage not knowing exactly how the system will run next year. Considering how high the political temperature is likely to be next year, it may be unwise for us to continue down this path.
On Monday, President Cyril Ramaphosa signed the Electoral Amendment Bill into law. This follows a Constitutional Court ruling forcing Parliament to create legislation to allow independent candidates to run for office. No longer do individuals have to join or form political parties.
However, at least five different groups have already said they will challenge the act in court, and there are indeed strong grounds to believe that judges will find it unconstitutional.
The first problem with the act is that, under this system, an independent candidate wanting to contest in a province would have to obtain 12,000 signatures to get on the ballot, while a political party has to acquire only 1,000 signatures to get on that same ballot.
The second is that “left-over votes” will be distributed to political parties.
If an independent candidate needs 50,000 votes to get a seat in Parliament and gets 100,000 votes, then there are 50,000 “left-over votes”. Under the current system, those votes will not go to the candidate (who will already have a seat). Instead, it appears that these votes will be distributed among various political parties. Those who oppose the system say it means that the independent candidates’ support will be gifted to the bigger parties, helping them win more seats in Parliament.
Needless to say, the parties could end up gaining seats in Parliament from the votes of people who did not vote for them and definitely didn’t want to support them. This cannot be fair or constitutional.
Was this situation deliberately created?
The sheer madness of this situation leads to questions about whether it was created deliberately.
Certainly, all of the political parties currently in Parliament (who needed only 1,000 signatures to get on the ballot in the first place) have much to lose from the introduction of independents.
And this may explain why it took so long to actually discuss the issue and then to finally vote on a bill (in the end, the ANC, the EFF and others voted for it; the DA, the IFP and others voted against it).
In the middle of this mess is the IEC.
It has to arrange an election which will probably be held towards the end of the first half of 2024 — just over a year away. The IEC has said it needs two years to prepare for elections.
That sound you hear is the ticking of a very important clock.
With no certainty of how exactly the balloting will work, the IEC has already said that if there is a court challenge to the new electoral act it will make their work much harder.
There is just so much that is not known at this stage.
Will independent candidates be allowed to run? Will the court overrule Parliament and force it to pass another bill before the election? Could part of the current/new act be struck down and part of it retained? Could it turn out that all of the changes to the law will have to be abandoned?
Judges may, once again, be forced into a position where they have to accept that there will be some unfairness, and then have to allow Parliament to get away with not complying with previous rulings.
In the meantime, political tensions are clearly rising.
Two possible outcomes (both bad)
While there are many possible bad outcomes to all of this, two stand out.
The first is that a party, an individual or a group of people challenge the results of the elections in court. This would be unprecedented in SA (mainly because elections have never been so tightly contested). It could also mean it would take weeks before the election results are finalised.
The consequences of this would be devastating.
The second possible outcome is that many voters feel they have been slighted by an unfair system. (If your vote is used to give a seat to a party you did not vote for, how would you feel?)
This would mean that a large group of people feel our democracy is not working for them and that the election results are not legitimate.
All of this points to how important it is for the system to be well understood and accepted.
While our current system has some shortcomings (it is impossible to force MPs to be accountable to constituencies, for example) — it is simple, and every vote is counted and leads to parliamentary seats being allocated. In 2019, the Black First Land First party, the Socialist Revolutionary Workers’ Party and several others did not get enough votes to get a seat.
This gives our current system legitimacy and leads to an argument that to make a major change now, just before the most contentious election in our democratic history, would be unwise.
A legal remedy
In other words, next year’s electoral system should be the same as the system in 2019, when South Africa last voted in a general election.
There is a legal remedy to make this happen. The Constitutional Court could, again, suspend the finding of invalidity until after next year’s election, and essentially give Parliament more time to include independent candidates.
But there are limits to how far this argument can go.
It is probably correct to say we should not make any changes to our voting system before this election because it will be so contentious. But it is entirely possible that the polls scheduled for 2029 will be even more tightly contested, and it could be even harder to make changes then.
Also, independent candidates would still be excluded. And if many of the political parties in Parliament deliberately delayed acting on the first Constitutional Court ruling so as to exclude them, their strategy has worked.
Much is now going to happen. The lawyers will make more money and the politicians will continue to squabble.
Unfortunately, it is also likely that the people most important in this process, the voters, will be ignored. DM