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Reflections on electoral reform — back to the drawing board after some success in constitutional challenge

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

Our electoral system will never be the same again and we have civil society to thank for the work they have done in advancing our democracy.

On 5 December 2017, along with a number of other stakeholders, I lodged our first historic application to the Constitutional Court to declare the Electoral Act unconstitutional because it did not allow independent candidates to contest and stand for office in the National Assembly and local government. On 11 June 2020, we succeeded and the Constitutional Court agreed with us. 

This application was about more than independent candidates, it was about electoral reform which has been in waiting for more than 20 years. That day, 5 December 2017, was poignant because it also marked the passing of the father of our nation, Nelson Mandela – a true democrat who wanted a more robust electoral system. He was often quoted as saying: “I have always cherished the idea of a democratic and free society for all persons to live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve.” Mandela notably called for electoral reform when he left office. 

Six years later, on almost the same day that we launched our first application, the Constitutional Court, on 4 December 2023, delivered a long-awaited judgment on our second attempt to declare parts of the new Electoral Amendment Act unconstitutional. We had some success, and were unsuccessful in some respects. Here are my reflections on the judgment. 

We went back to the Constitutional Court because in the years between the 2020 judgment and today, Parliament acted and produced an amendment act that creates an unfair electoral environment for independents. Between the 2020 judgment and April 2023 when the President signed the new act, we saw politicians trying to dilute the spirit of the 2020 judgment. After dragging their feet, the parliamentary committee ignored the majority view of the ministerial advisory committee, conducted a public consultation process that was flawed, and produced an amendment to the Electoral Act that created unfair outcomes. We went back to the court because we fundamentally believed that the new act did not pass the muster of our Constitution and the spirit of free and fair elections. 

Read more in Daily Maverick: Win some, lose some – IEC, civil society and political parties welcome key ConCourt rulings on elections

In this case, the respondents argued that in order for an independent candidate to obtain a regional seat, they would have to obtain an average of 83,511 votes in their province to qualify for the first allocation of 200 seats in the National Assembly. They can only compete for seats in this allocation. 

Consider that in the 2019 national elections the quota for a seat was an average of 43,485 votes. Some smaller parties were allocated seats in Parliament with the following number of votes: Aljama (31,468, one seat), the PAC (32,677, one seat) and COPE (47,461, two seats). This was the culmination of total votes per party in all nine provinces. 

Our submission was that in the 2024 elections, an independent candidate with an estimated 57,000 votes and a threshold per province with an average of 83,511 votes, would not be able to obtain a seat in Parliament, while a political party with an estimated 45,000 votes would be able to obtain a seat, creating an unfair competitive environment. 

The court dismissed the parts of our application that dealt with the numerical data demonstrating unfairness in the next election. While we accept the judgment, the maths still present a completely different story. There is no doubt among our legal team, together with our actuaries and specialist election scientists, that the weighting of an independent candidate counts less than that of a political party. There is an unfairness created by this new electoral act that asks independent candidates to run up the hill, while asking political parties to run down the hill.

The court’s reference to the modelling assumptions about vote-splitting was puzzling. The unfairness of the vote threshold of independents compared with that of parties is entirely unaffected by their assumptions. The total votes cast determines the quota applying to parties in the PR seat allocation, and the split of votes for individual parties is irrelevant.

The bottom line is that the quota for independents in the regional election should be compared with the effective quota for parties in the PR calculations. The equality of the quota in regional elections, as raised by the court, is not correct, as this is not the final seat allocation for parties, whereas it is for independents. Independent candidates still require 80% more votes for the National Assembly than parties. 

Our view remains that the Electoral Amendment Act has not succeeded in upholding the constitutional provision in section 9.1 that “everyone is equal before the law and has equal protection and benefit of the law”. Unfortunately, the mathematical accuracy of these calculations, which has been modelled by actuaries and statisticians, will only become verifiable as fact after the election.

We did succeed in part and that is notable. One of the applicants, the One South Africa Movement, succeeded in reducing the signature requirements for independent candidates to contest in the election. It argued successfully that it is unfair to require independent candidates to obtain signatures from 15% of the registered voters in a province to contest the election. The court brought this down to 1,000 signatures. This was a huge victory and removed a significant barrier to participation in elections for independent candidates. 

We welcome this victory as we have always proclaimed that we, as civil society organisations, would like to be seen as a constructive force in strengthening our democracy. Truth be told, if we had not as an organisation challenged this act at the Constitutional Court, an unsuccessful contender in 2024 could have taken this matter to court after the elections, claiming they did not have an equal opportunity to contest. The act would have been declared unconstitutional and there would be a real risk that the elections would consequently be declared unconstitutional. 

The 2024 elections will be an unfair gauge of the intent of the Independent Candidates Association to promote electoral reform and to attract independent new voices.

You may be wondering what’s next. As a result of the aforementioned, the members of our organisations are in a crisis since the odds of independent candidates are stacked against them in the 2024 elections. I listened to an interview last week with Zackie Achmat, who is running as an independent candidate in the 2024 elections. He confirmed that his campaign had cost R3-million to date and believed it would need another R5-million. If he had joined a political party or formed a civil movement, he would not have needed to raise such a large budget on his own, or obtain nearly double the votes to get into Parliament. Effectively, the purpose of our 2020 court application has largely been negated, as we sought to make it easier for people to participate in politics without the political party as the vehicle for the actualisation of political rights. 

There is no doubt that with the continued impediments to independent candidates standing for office, the greatest loser is our democracy and the result is that communities will not be able to directly nominate their leaders. The 2024 elections will be an unfair gauge of the intent of the Independent Candidates Association to promote electoral reform and to attract independent new voices, and the organisation faces significant obstacles in attracting a younger generation of new ideas to add to the fabric of our maturing and vibrant democracy.

Even more certain is that it is back to the drawing board for our organisation and members. We are well aware that we need members to be inside the corridors of Parliament to have their voices heard regarding the electoral reform process, since standing on the outside does not always achieve the desired result. 

Read more in Daily Maverick: ‘If it’s not broken, don’t fix it,’ says Johann Kriegler as calls continue to push for progress in electoral reform panel process

Our challenge to Minister of Home Affairs Aaron Motsoaledi is that he still has the opportunity with the election of his members to the new electoral panel to resolve many of the lessons learnt and not reinvent the wheel. There is still an opportunity to improve our electoral system for the benefit of the people, not just the party. 

Important foundations have been laid and we are not concerned about the seeming loss of victory.

I want to confirm that we have never supported the new electoral system that the minister has imposed on South Africa. I believe the minimalistic option could never work, as you cannot include an independent candidate in the system where they need to stand up to a political party, without a proper constituency. The only system that will work is a constituency-based system where leaders can represent their constituency directly and be more accountable. This version of an electoral system has been supported by many statutory commissions as well as Valli Moosa in the majority opinion of the ministerial advisory committee report. 

In conclusion, the past six years have been a privilege and honour. I was able to work with many gifted individuals with academic, legal and political experience, to whom our nation will always owe a great sense of gratitude. Together, we have made huge strides. We remain committed to one day witness an electoral  system that will usher in “the second transition” and a more accountable and just electoral system. 

There remain no regrets for choosing the path less travelled, and I realise that it is not a sprint but a marathon. Important foundations have been laid and we are not concerned about the seeming loss of victory at the moment, but will continue to the final triumph.

Our vision is not restricted to the short term, but rather to how we can influence our electoral system 50 years hence. We want to build the road that will allow the younger generation to be statesmen and women of justice and participate in national politics. We know victory will come. DM

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  • Roelf Pretorius says:

    Thank you for what you have done so far dr. Louis! But would it not be the right thing to go a bit further? Is the real flaw in the electoral system not that the whole idea of wanting political parties to stand against independents (in other words, organisations against individual persons) is non-sensical? And after all, the pre-amble to the Constitution does not speak of the people of SA is represented by political parties; it specifically uses the phrase “through our freely elected REPRESENTATIVES”. Does that not imply individual persons, and that political parties are only mechanisms, facilitators of these representatives? Is that not what should be challenged in the Constitutional Court? Because the answer of both the EFF and ANC to dodge what really should happen was to contend that independents should still be accountable to organisations, while the ConCourt has already made it clear that representatives should give priority to their belief in what the voters say above their organisation. In other words, both the ANC and EFF has no interest in upholding the Constitution, and the time is to confront them and the country with the fact that they are only in parliament to actually UPHOLD the Constitution. As long as we don’t confront this unwillingness head-on, they will just get other excuses to avoid being held accountable to the public directly. Unfortunately I don’t have the resources to do it, or I would have. How about the organisations working with you on this quest?

    • David van Rooyen says:

      Thank you Roelf … you raise some legitimate issues. I do not have the citations to hand, and I cannot recall the parties involved, however I do recall cases which have been decided by the ConCourt, but the rulings have then been taken back to the same court on “Review” for clarification or further consideration. Would that be a valid course of action in this case ?

  • JAMES GOODWIN says:

    Reform to MMP with 200 single-member constituencies covering SA and 200 seats drawn from party lists. Constituencies allow for independent and party-backed candidates as you get two National Assembly votes 1, party vote and 2, constituency vote. Provincial govt doesn’t require two ballots, only a single vote and no change in voting occurs here whilst local municipal elections also remain the same as they currently use a Mixed-Member Proportional rep voting system.

    Strengths of MMP over STV or PR w/ closed list is the versatility of it. Designed in Germany following WWII to minimise the chance of a single party ruling and giving greater voice to minor parties and this can include independents. New Zealand adopted the system with some minor adjustments to fit their political landscape and since 1996 they seem to be doing all right.

    It’s more conducive to unitary states too, STV or SM are more suited to federations. It’s arguable the “electoral reform” undertaken by the government at the order of Concourt probably wasn’t what they had in mind, the playing field is not even using the existing system.

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