MICHAEL LOUIS: Parliament drags its feet on even the weakest version of voting reform

The deadline that the Constitutional Court gave parliament to change the laws that govern our voting system at national and provincial level is only a couple of weeks away.

Considering that it is conceivably the single most important change in law since the beginning of democracy, it remains both a mystery and a concern that parliament is set to fail to meet this deadline.

In the apex court’s seminal New Nation Movement judgment of June 2020 parliament was given 24 months to amend the laws to make provision for independent candidates to contest national and provincial elections. The court said, correctly, that the laws are unconstitutional in that they force citizens to seek elected office only through political parties.

MPs are meant to have an obligation to the constitution and to the general population; they are meant to represent the interests of the people over and above all else. But this is not how our democracy has turned out. Instead, politicians repeatedly put party before country and fail to honour the spirit or letter of the constitution.

The conversation about electoral reform has been going on for more than 23 years and there have been many false starts, but the Constitutional Court has finally — and legally — handed parliament a once-in-a-generation opportunity to reform the system. When former president Nelson Mandela left office in 1999 he called for a review of the electoral system.

In 2002 then president Thabo Mbeki established a task team led by the late Frederik Van Zyl Slabbert to examine this matter. In 2003 the electoral task team released its final report. The report called for an alternative electoral system that combined constituency and proportional representation models — a mixed system.

In 2006 the National Assembly appointed an independent panel to assess the electoral system, and the committee agreed that the system needed urgent reform. In 2017 the Motlanthe high-level panel recommended amendments to the Electoral Act to provide for a system that makes MPs accountable to defined constituencies.

As we approach the finish line of this 23-year journey we must take care not to be complacent. We must ensure to implement the best version of reform, for our sake and the sake of future generations. Therefore, we are offering an olive branch to parliament, making a sincere call to not proceed with its unconstitutional Electoral Bill. The bill is unreasonable, unfair and unconstitutional for at least four reasons:

• The discarding of excess votes.
• Independent candidates are limited to half the seats in parliament.
• The addition of threshold requirements for independents to stand for election.
• The unsolved matter of when vacancies in parliament arise through resignation or death.

The One SA Movement has raised these constitutionality concerns with parliament in several forums, including written submissions, oral submissions, public hearings and formal letters, as well as leading a team of legal drafters to draft the Amendment Laws Bill, submitted as a private member’s motion by COPE leader Mosiuoa Lekota.

After attending the last two meetings of parliament’s home affairs committee I am even more concerned that our caution has not been heard nor dealt with by either the department of home affairs or the legal division of parliament.

It remains our position that the system proposed in the current bill is not achievable and is unconstitutional. We wish to appeal to parliament to avoid the lengthy and costly litigation process that will ensue if it proceeds with the bill in its current form.

In this light I approached Mosa Chabane, chair of the home affairs committee, to offer relevant contributions on material mathematical issues that have been ignored thus far. The committee deserves the opportunity to have a full presentation by actuary and independent election analyst Michael Atkins as to the numerical interpretation of the current bill, which will provide an understanding of its numerical effect regarding proportionality and constitutionality and demonstrate issues that should be taken into account. Election modelling must be a critical part of a rational consideration of the viability of the proposed bill.

One SA is working with civil society to ensure this happens. Later this month a round-table discussion will be facilitated with the aim of resolving on a united way forward to achieve a more accountable and fair electoral system for generations to come. Organisations involved include the Electoral Institute for Sustainable Democracy in Africa, Democracy Works, the Organisation Undoing Tax Abuse (Outa), the Helen Suzman Foundation, the Makana Citizens Front, the FW de Klerk Foundation, the Rivonia Circle, the Council for the Advancement of the SA Constitution, the Independent Candidates Association, and the African School of Governance.

In truth, the public and many constitutional scholars have 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 onto the institution.

Valli Moosa’s submission to the committee was a testament to this. He asserted that in every submission before the ministerial advisory committee he chaired, this bill’s intention and effect never appeared from a single submission. It is like it was pulled from the sky, or more likely carefully chosen by the politicians in government because they stand to benefit significantly from the weakest version of reform.

Our electoral system is not only exclusionary, it is not working. Every South African can attest to living with the consequences. Party leaders are not accountable, they are not accessible and they are not working in line with the interests of the people.

One SA remains committed to being a constructive force to fulfil the vision of an electoral system that is constitutional, fair and inclusive, as proposed by our constitutional drafters. We will remain the check and balance as this process unfolds and as this government applies for more delays to the inevitable. We take seriously the call by President Cyril Ramaphosa that the government invites and welcomes civil society to take its place and assist SA to be great again.

Our challenge to the government is to be wise enough to stand together when the time comes.

• Dr Louis is chair of the One SA Movement.