LEGAL CONUNDRUM OP-ED
The few pros and many serious cons of a constitutional challenge to the new electoral law
The most fundamental issue with South Africa’s new electoral law is the constitutional requirement of proportional representation. The electoral system gravely distorts proportional representation because it creates unequal competition between independent candidates and political parties. This is enough grounds for a challenge to the new law in the Constitutional Court.
On 17 April, President Cyril Ramaphosa signed the Electoral Amendment Bill into law. Barely two months later, the law is facing legal challenges from civil society organisations.
Several of them have headed to the Constitutional Court in a bid to prove that the law is unconstitutional because it creates unequal competition between independent candidates and political parties and puts barriers to entry for independent candidates.
These legal challenges come after pressure from civil society organisations on the President not to sign the law because it is flawed and if adopted without being fixed, would risk legal action.
Following extensive advice to Parliament over more than two years to ensure that it passed a bill that is constitutionally sound, Parliament still passed a defective bill. Now, the President has signed that defective bill into law, sparking the legal challenges.
The electoral law has been amended to allow for independent candidates to contest the elections. However, the electoral system is potentially unconstitutional.
Why are there legal challenges against the electoral law?
The most fundamental issue with the new electoral law is the constitutional requirement of proportional representation, in which political parties are allocated a number of seats proportional to how many votes they got in the election. The electoral system gravely distorts proportional representation because it creates unequal competition between independent candidates and political parties. This is enough grounds for a challenge to the electoral law in the Constitutional Court.
With that being said, My Vote Counts, in principle, supports the challenge to the new electoral law on the basis that the proposed electoral system has the potential to undermine the constitutional requirement of proportional representation. However, partaking in legal action is not desirable.
Key considerations against legal challenges to the electoral law
Legal challenges could mean prolonged levels of uncertainty.
If the electoral law is challenged, there may not be enough time to know whether independent candidates will be allowed to contest the elections in 2024. So, legal challenges mean that we cannot guarantee the outcome of the electoral reform process going forward. This is because we do not know whether the Constitutional Court (after assessing the constitutionality of the electoral law) will send it back to Parliament and force it to make necessary changes before the election or even whether part of the new law will be declared unconstitutional and part of it retained.
Furthermore, it is also possible that all the changes to the law will have to be abandoned.
Legal challenges put the ConCourt in a position where it must decide whether to make changes to the new law or, once again, be forced into a position where it accepts that there will be some unfairness and then allow Parliament to get away with not complying with previous rulings.
A legal challenge against the new electoral law seems to be an attempt to further expand the mandate of the judiciary. However, the ConCourt, by handing down a judgment that did not consider the consequences of tweaking the electoral system, has shown that it is not competent to remedy electoral issues.
In the New Nation Movement NPC & Others case, the Constitutional Court ordered that Parliament — within a period of 24 months — must remedy defects in the Electoral Act by allowing independent candidates to contest elections. This was not sufficient time for Parliament to undergo the complex process of making changes to the electoral system. A judgment on the matter could undermine the authority and legitimacy of the judiciary.
Moreover, continued uncertainty will threaten the preparation work of the Electoral Commission of South Africa (IEC).
The IEC needs 18 to 24 months to draw up an election timetable, develop new systems for the inclusion of independent candidates and educate the public and voters about the new electoral system. We are possibly 12 months away from the election. A legal challenge disrupts the already constrained preparation process for the elections.
Moreover, the IEC faces budget cuts of almost R800-million (before taking inflation into account) over the next three years. The implementation of the new electoral law has been adversely affected by budget cuts and any further changes to the law could compromise the elections.
Some of the challenges to the electoral law are not urgent and can be challenged after next year’s elections and resolved in time for the following elections in 2029. These include, for example, the signature entry requirements and other qualifying criteria.
A possible option could be holding the elections under the old electoral system while a new system is configured in time for the 2029 elections that can meaningfully accommodate independent candidates.
Because the ConCourt declared that the outgoing Electoral Act is unconstitutional, it is the ConCourt that can suspend or extend the invalidity of the Electoral Act, and this would need to be by way of another court order. The ConCourt can do so if it deems the new electoral law to be unconstitutional and accepts that it cannot be amended in time for the 2024 elections to be free and fair.
The electoral reform process was a mess from the beginning. The ConCourt did not properly consider the consequences of making any changes to the electoral system and there was insufficient time to make a significant constitutional change. The ConCourt is not competent to rectify electoral problems.
There are only two ways to accommodate independent candidates in a proportional electoral system. One is through a mixed-member electoral system and the other is the single transferable vote. These provoke significant changes to the electoral law and require time to implement.
We now have a constitutionally defective electoral law while we are hurtling towards our next election. Legal challenges to the electoral law will worsen matters.
The elections must be held under a constitutional electoral system to avoid the risk of unconstitutional elections. Some of the issues can be taken up with the Electoral Reform Panel and a broader electoral reform process beyond 2024.
The electoral reform debate has been going on for years, without any implementation. Electoral reform is one of the routes to improving accountability and strengthening our democracy. DM
Letlhogonolo Letshele is the electoral systems researcher at My Vote Counts. My Vote Counts strives for a democracy where every person has equal influence in all the decisions that affect them.