Two years in the making, parliament passes electoral reform bill

It has been a long, tortuous road from the time that the Constitutional Court declared the Electoral Act unconstitutional more than two years ago, but finally the National Assembly has adopted amendments to the act that will allow independent candidates to contest national and provincial elections.

The Electoral Amendment Bill was passed with the support of the ANC, EFF, UDM, Good and Al Jama-ah, with the DA, IFP, FF+ and ACDP opposing.

DA MP Adrian Roos said the bill is glaringly flawed and irrational.

Unfortunately for home affairs minister Aaron Motsoaledi the adoption does not mark the end to contestation over the bill. The Independent Candidates Association (ICA) has prepared legal papers to be lodged with the Constitutional Court as soon as the bill is signed into law by President Cyril Ramaphosa, ICA founder Michael Louis said Thursday.

The president has less than a week to do so before the extended deadline of February 28 imposed by the court for the amendments to be on the statute books.

The ICA and a host of civil society organisations are opposed to the bill on the grounds that it violates the constitutional principle of general proportionality; because the method of seat calculation favours big political parties at the expense of independent candidates; and because of the treatment of “wasted votes” of independent candidates. They insist that all votes must have equal value.

ANC veterans such as Thabo Mbeki and Kgalema Motlanthe have raised reservations about the bill. Also vehemently opposed to it is Valli Moosa, who chaired a ministerial advisory committee on electoral reform the majority report of which recommended a constituency-based system. Motsoaledi opted for the minority report.

Opponents of the bill made their voices heard throughout the prolonged parliamentary process which included several rounds of public hearings and public submissions.

The National Assembly’s home affairs committee and the National Council of Provinces’ select committee on security and justice were not completely deaf to the pleadings, introducing amendments to the bill in a bid to reach a compromise with opponents.

Independent candidates will be allowed to contest elections for parliament in more than one province; the method of seat allocation was adjusted; vacancies left by independent candidates will not be left for the next election but filled according to a calculation which, however, still does not meet approval; and the number of signatures required for previously unelected independent candidates to register for elections was progressively reduced from 50% of the quota in the previous election (about 20,000) to 15% (about 6,000). Political parties will be subject to the same requirement.

Critics still believe the required number of signatures is too high and will act as a barrier to independent candidates contesting national and provincial elections.

Another major compromise by Motsoaledi was the inclusion of a clause establishing an expert electoral reform consultative panel to look into a comprehensive system of electoral reform — including a possible constituency-based system. The panel will be established within four months of the enactment of the bill and must submit a report a year after the 2024 elections so that any recommended changes can be introduced before the 2029 elections.

Motsoaledi’s argument against introducing amendments to the Electoral Act to allow for constituencies was that there would not be enough time for the Electoral Commission of SA to put the system in place before the 2024 elections.

The Constitutional Court challenge to the bill by the ICA heightens this danger, though the association wants the court to “read in” the desired changes so that a framework is in place for the elections.

Next up for parliament will be to amend the Political Party Funding Act to make provision for the funding of independent candidates.

ensorl@businesslive.co.za