As a nation gears up for elections, it becomes a stage where myriad forces converge, each vying for influence and power. In such moments, the responsibility of safeguarding the democratic process falls not only on the shoulders of elected officials, but also on the vigilant watch of civil society and active citizens.

As American author and political activist Howard Zinn aptly remarked, “voting is easy and marginally useful, but it is a poor substitute for democracy, which requires direct action by concerned citizens”. Zinn encapsulates the essence of continued citizen engagement and the critical role they play in ensuring the integrity and vitality of the electoral process.

This has been the journey over the past few years with the organisations I chair, which include the Independent Candidate Association (ICA). We live in a constitutional state, the foundation of governance rests upon strict adherence to the principles outlined within the Constitution. 

Upholding the rule of law is not merely a suggestion, but an imperative, ensuring that justice is administered impartially and consistently.  

A further matter relating to independent candidates played out recently. The Electoral Matters Amendment Bill is before Parliament, aimed at making several “technical” amendments to various laws so that independent candidates can be included in the electoral process.

Controversial changes

However, the Department of Home Affairs introduced other controversial changes to the Political Party Funding Act that are not needed in relation to independents.

In particular, the formula for state funding of political parties (and now independents) with representation in provincial or national government has been altered in a manner that benefits the largest party, and severely cuts the funding to independents and smaller parties.

Read more in Daily Maverick: Elections ’24

Contrary to the advice of Parliamentary Legal Services, the minister insisted that this was a direct consequence of the inclusion of independents. He advanced a simple numerical scenario to make his case, but there was no attempt to calculate whether a less drastic alteration might serve the stated purpose.

In fact, the presence of independents in Parliament improves the very calculation he complained of, rather than worsening it.

However, there are also more constitutional breaches to be considered after the election results are made known. This especially in the context of a changed electoral system including independent candidates, and the failed Constitutional Court challenge to the seat allocation system for independents contesting the National Assembly — there are some interesting result outcomes that could require additional court action to settle or test.

Probability of overhang

Firstly, the large number of political parties contesting the national election (115, as opposed to 48 and 29, in the previous two elections) somewhat increases the probability of overhang in relation to the new regional ballot. Overhang is the situation where a party may win a seat in the regional allocation (which is meant to be provisional in relation to parties), but fail to gather enough votes for a seat in the final seat allocation.

The presence of so many parties means that there will be more seats allocated in the regional calculations on the basis of remainder votes, creating the possibility of lower vote totals being needed for the award of one of the remainder seats. If a party with support mainly in one province gains a seat in this manner, then it is possible that the party may not have enough votes for a seat in the overall seat allocations.

In the ICA matter in 2023, the court incorrectly inferred that it was not possible for overhang to happen with the current 200/200 split of regional and compensatory seats. If this does happen, then the seat allocations in the Electoral Act will “award” 401 seats, which is not constitutionally permissible.

The Local Government: Municipal Structures Act deals with the equivalent situation with respect to ward and proportional representation seats, and makes a seat adjustment to solve the problem of overhang. The court would need to order a similar process for the National Assembly.

The second interesting scenario that could arise might be if an independent candidate fails to obtain a seat in a regional election, but still has effectively more votes than a political party with a seat in the National Assembly. In fact, because of the peculiar seat allocation formula, such a party might even obtain two seats while having fewer votes than the independent candidate.

This has always been our contention — that we predict that an independent candidate could get 57,000 votes and not get a seat in Parliament, while a political party with approximately 43,000 votes will get a seat. This would be challenged immediately by the ICA in the Electoral Court, and definitely will go back to the Constitutional court on review.

The essence of a constitutional state lies in its commitment to upholding the principles of equality, justice and human dignity. Central to the ethos is the fundamental concept that each vote carries equal weight, ensuring that every voice is heard, and every citizen is represented.

As American civil rights leader Martin Luther King Jr famously said, “injustice anywhere is a threat to justice everywhere”.

Thus, no effort should be spared in safeguarding the sanctity of the vote and ensuring that justice prevails for all. By upholding these principles, a constitutional state not only fulfils its duty to its citizens but also reinforces the foundation upon which democracy lies. DM