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Picture: GALLO IMAGES/VOLKSBLAD/MLUNGISI LOUW
Picture: GALLO IMAGES/VOLKSBLAD/MLUNGISI LOUW

An ominous cloud of uncertainty hangs over the legislative framework that will prevail for the 2024 national and provincial elections.

It all depends on whether parliament adopts amendments to the Electoral Act allowing independent candidates to stand for these elections — in a way that satisfies the many civil society organisations that have objected strongly to the Electoral Amendment Bill.

The bill is being processed by parliament’s home affairs portfolio committee, which passed a motion of desirability on Tuesday. The motion allows the committee to begin clause by clause deliberations of the bill. The committee does not appear to have accepted the objections and seems to be proceeding with a half-baked solution.

If the civil society organisations do not have their objections addressed, they are quite likely to mount a legal challenge to the law once it is promulgated. But this would be several months away, as the committee has to adopt a revised version of the bill, the National Assembly has to pass it, the National Council of Provinces has to process it and President Cyril Ramaphosa has to sign it before that can happen.

If the committee makes substantial changes to the original version of the bill that was presented for public comment, another round of public participation would be required, which could further delay its adoption.

If it occurs, a legal challenge would thus only take place later this year or even next year and would be a prolonged affair. If the challenge succeeds and the amendment act is deemed unconstitutional, it would be back to the drawing board for the department of home affairs and parliament. That could make it unlikely that an acceptable law would be in place by the 2024 election.

There have been suggestions that the election could take place under the existing act. But that would render it unconstitutional since it has been rejected by the Constitutional Court. In any case the civil society organisations lobbying for the participation of independent candidates would not tolerate their exclusion from the 2024 election. Such candidates are already allowed in local government elections.

Twelve civil society organisations met last week to discuss their tactics. They agreed on a set of non-negotiables, which include the inclusion of constituencies and the ability of independent candidates to contest all 400 seats in the National Assembly on a proportional representation basis. The bill, as it stands, provides for the nine provinces to constitute constituencies and for independent candidates to contest only 200 seats. The Electoral Commission of SA (IEC) has suggested amendments that address some but not all of the concerns.

Key to the objections is that the electoral system proposed in the bill will undermine the principle of proportional representation enshrined in the constitution, which says seats must be allocated in proportion to the number of votes cast. The bill as it stands also undermines the principle of the equality of all votes — with the threshold for an independent to win a seat being higher than candidate representing a political party. Another objection is that votes obtained by an independent candidate over and above the threshold required to obtain a seat are wasted votes.

The civil society organisations favour a private member’s bill tabled by Congress of the People (COPE) leader Mosiuoa Lekota, which  provides for SA to be divided up into constituencies. The home affairs committee rejected this bill in favour of that tabled by the department.

Much of the blame for the race against time that SA now faces lies with the department of home affairs. The Constitutional Court passed its judgment of unconstitutionality in June 2020 and gave a grace period of two years for this to be rectified. That expires on June 10 and parliament has had to approach the court for a six-month extension. The department tabled its bill in January this year.

Home affairs minister Aaron Motsoaledi justifies the delay by saying that the diverse electoral systems around the world need to be studied. That shouldn’t have taken 18 months.

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