Last week the much-anticipated public hearings into government’s proposed new Electoral Bill commenced, affording South Africans the opportunity to have their say on which new electoral system is to be adopted and implemented ahead of the 2024 National and Provincial Elections.

This process considers arguably the single most important piece of legislation before Parliament since the dawn of democracy due to the seminal New Nation Movement judgment handed down by the Constitutional Court in June 2020. As such, the public participation process ought to reflect this and be carried out authentically.

I personally attended the Bloemfontein leg on behalf of the One South Africa Movement (OSA) to both make a submission and monitor the hearings. What is quite evident from my own observation and those of fellow activists who have attended each of these hearings in the different provinces is that the public participation process is a complete sham.

There are three aspects to support his claim.

1. Failure of the committee to properly educate the public on the Amendment Bill and the purpose of the public participation process

It is evident that Parliament and the provincial legislatures have failed in their duty to educate the public on the importance of the bill as well as the purpose of public participation. The most glaring example of this is that many people have made submissions in favour of or against the inclusion of independent candidates. These submissions were philosophical in nature and largely referenced people’s experiences, positive and negative, in local government and some idealised what independents could achieve in national government to counteract the shenanigans of party politics in Parliament.

However, this is not what the hearings are for. Independents must be included — that much was settled by the Constitutional Court. The purpose of the public hearings is to determine which system would best incorporate independent candidates going forward.

In Doctors for Life International v Speaker of the National Assembly, the Constitutional Court directed that: 

“Parliament and the provincial legislatures must provide notice of and information about the legislation under consideration and the opportunities for participation that are available. To achieve this, it may be desirable to provide public education that builds capacity for such participation. Public involvement in the legislative process requires access to information and the facilitation of learning and understanding in order to achieve meaningful involvement by ordinary citizens.”

The court went on to say that the duty to facilitate public participation was meaningless if there was no effort to ensure that the public did participate. Participation was meaningful only when the public was given time to participate before decisions by the legislatures were made and not when they were about to be made.

The court further stressed that:

“The requirement that participation had to be facilitated where it was most meaningful had both symbolic and practical objectives: the persons concerned had to be manifestly shown the respect due to them as concerned citizens, and the legislators had to have the benefit of all inputs that would enable them to produce the best possible laws.”

Participants clearly did not understand that the Constitutional Court had already made a ruling to include independent candidates and that the purpose of these hearings was to decide on a system that would best incorporate independent candidates into our electoral system.

Instead of participants picking between a constituency-based system (as proposed in the Lekota bill) vs a proportional representation system (in the Amendment Bill), participants are two years behind the curve and still debating the inclusion of independent candidates as a concept.

In my oral submission, I made it clear that all options ought to be on the table — the Ministerial Advisory Committee (MAC) Report, Government’s proposed bill and the Lekota bill. There should have been a presentation at the hearings to educate citizens on the implications of both the bills, followed by a choice between the two.

Instead, only the government’s bill was put on the table and the public was asked whether or not they are in favour of that particular bill.

I personally asked Parliament’s Home Affairs Committee if they had a copy of the MAC report or the Lekota bill with them — and it appeared they did not know what I was speaking about. All the participants that I interviewed after the hearing did not understand at all the different options. Instead, political party operatives were deployed to read from a script that was largely uninformed and out of context.

The choice at these public hearings should have been simple: Do you prefer a constituency-based system (Lekota bill) or a proportional representation system (government’s bill) in order to integrate independent candidates.

Because of the lack of public education, large parts of the data provided in these hearings is totally inconsequential, the process totally flawed and now ripe for a legal challenge.

2. The ANC’s contribution

The ANC has gone to great lengths to send large groups of people across the country to attend these meetings and effectively regurgitate the same points: that they support the bill and that they want independent candidates to be equal to political parties. This point is ironic as the bill that they supposedly support does not put independent candidates and political parties on the same playing field. It intentionally makes it harder for independent candidates to win a seat in Parliament and also excludes them from contesting for 200 of the 400 seats in Parliament, in spite of how good the candidate is.

The facts are that in the 2019 elections, the threshold for a seat in the National Assembly was 43,000. Today, as an independent candidate you need to obtain double those votes to win a seat based on the government bill. The bill goes out of its way to discriminate against independent candidates. This is unconstitutional and against the principle of “one person, one vote of equal value”.

3. The differential separation of powers between the executive and legislative

Unfortunately, this process again has presented conclusive proof there is no separation of powers between the executive and legislative branches of government.

It is our view that the executive has overreached its hand and acted in contravention of the instructive Constitutional Court’s ruling. To date, the minister of home affairs refers to time-frame limitations in implementing this reform, citing that there is “no time” to implement a full overhaul of our electoral system.

Using this superficial rationale, the executive has usurped Parliament. While the Constitutional Court gave Parliament the mandate to change the law, the minister has decided on the policy direction of the bill. The executive has decided and now expects Parliament to rubber-stamp its decision. This is not what the court-ordered.

In truth, the public has no idea how the government’s bill arrived in Parliament. Notwithstanding its fundamental flaws, there exists no logical flow as to how this version of a policy was forced on Parliament.

Valli Moosa’s submission to the committee was a testament to this. He asserted that in every submission before the Ministerial Advisory Committee (MAC) which he chaired, this bill’s intention and effect never appeared from a single submission to the MAC. It’s like it was pulled from the sky.

Procedurally, the most suitable and supported version of electoral reform — provided for in the Lekota bill –– was rejected. A policy decision of the executive, swiftly rubber-stamped by Parliament.

This, in our view, renders the bill in conflict with the Constitutional Court ruling, and therefore unconstitutional.

Conclusion

Considered holistically, and if continued, these transgressions risk rendering the entire public participation process illegitimate. We raise these red flags now and wish to upfront send a stern and unequivocal warning to Parliament to resist rendering this process a tick box exercise. We will not hesitate to legally challenge the process if need be.

Our position is clear: we reject the current bill as it unfairly discriminates against independents and in favour of political parties. It allows for the throwing away of sacred votes and the reserving of half the seats in Parliament for politicians and political parties. It changes very little.

Instead, we strongly advocate for full electoral reform, encompassing a constituency-based system whereby we the people can directly choose our leaders instead of political parties imposing their politicians on us.

This matter is about leaving a legacy for generations to come. Our plea is for our public servants to do what is right and rise above party politics and self-interest and fulfil their true mandate as proclaimed at the Congress of the People in 1955, that “the people shall govern”. DM

Dr Michael Louis is Chairperson of the One South Africa Movement (OSA)