Electoral Amendment Bill is still unconstitutional, say opponents

Civil society organisations will be making a last-ditch effort to amend the Electoral Amendment Bill to address what they regard as its unconstitutional aspects, but with parliament’s home affairs committee having decided on most issues there seems little prospect of success at this late stage. 

The Independent Candidates Association of SA (ICA) and the One SA Movement met the Electoral Commission of SA (IEC) on Monday to raise their concerns about the bill, which was necessitated by a Constitutional Court judgment that ruled the Electoral Act is unconstitutional because it does not provide for independent candidates to stand for national and provincial elections.

More than 16 civil society organisations would also meet this Friday to discuss the way forward, ICA founder Michael Louis said. He said the committee had not taken up the offer of civil society organisations to make further presentations on the bill but they still hope that it and home affairs minister Aaron Motsoaledi will meet them.

The committee is unlikely to make changes to the bill now having discussed it at length and taken advice from parliamentary legal advisers and the IEC. The only possibility for further amendments will be when it is referred by the National Assembly to the National Council of Provinces, said ANC committee member Brandon Pillay.

The committee has made a number of substantial submissions to the original version handed to parliament by Motsoaledi but Louis said the civil society organisations are convinced that it remains unconstitutional. This is not because it does not provide for demarcated constituencies — the bill provides for the nine provinces to be constituencies — which he said is a policy issue and not a constitutional one.

Louis cited seven aspects of the bill as being unconstitutional, among them that there would be only one ballot for provincial legislatures. The majority opinion of the ministerial advisory committee appointed by the minister to make recommendations on electoral reform suggested four ballots: two for the National Assembly and two for provincial legislatures. Louis said this is because having only one ballot for provincial legislatures would disproportionately benefit larger political parties as their seat share would be higher than their vote share.

He also objected to the method for calculating the seat allocation for the National Assembly.

Another objection of the ICA is that seats left vacant by an independent candidate would be allocated to the political party or independent candidate with the second-highest number of votes. This, he said, would not express the will of the people and more so in the likely event of a coalition government “as an independent candidate’s very life could be at risk if a political party knows they are next on the succession list for that particular seat”.

The solution for this, he said, should be that independent candidates should declare up front who their replacement should be. However, Pillay and DA committee member Adrian Roos pointed out that this would mean a political association, which independent candidates could form by establishing a political party. It would also be unconstitutional if the next independent candidate had fewer votes than the political party candidate.

The requirement that an independent candidate will require an estimated 20,000 signatures to qualify as a candidate is also an unrealistic barrier to entry and therefore unconstitutional, Louis said.

This figure approximated the committee’s decision to require an independent candidate to obtain the number of signatures equal to 50% of the quota for a seat in the previous election to qualify as a candidate. Pillay said that now a candidate in a local government election is required to obtain 50 signatures and so 20,000 for an entire province is realistic.

Louis is also opposed to the committee’s decision to allow independent candidates to stand in more than one province for a seat in the National Assembly and for them to rank their provinces before the election in the event that they win a seat in more than one. He said “every vote counts” means that the voters for the independent candidate in a province which was not top of the ranking list would lose their votes as wasted votes. Roos said their candidate would still have a seat in the National Assembly so they would be represented.

The committee has decided on a 200/200 split between seats in the National Assembly for independent candidates and proportionally represented political party candidates but Louis and the DA preferred a 300/100 split as this would give independent candidates greater representation.

The committee still has to decide on whether to have a cooling-off period in terms of which an independent candidate could not be a member of a political party three months before the election. It has been advised that this could be unconstitutional as it would restrict the right of individuals to stand for election, a viewpoint that Louis shares.

Pillay insisted that the committee had done everything possible to ensure that the bill is constitutional and fair to independent candidates and political parties. Roos said the committee had sought legal advice at every step of the way to assure that the bill, as amended, is constitutional and fair and he believes it is far better than the original.

ensorl@businesslive.co.za