Politicians who fail to make it onto their political party lists for elections will not be able to simply opt to stand as independent candidates, in terms of the Electoral Amendment Bill adopted by the cabinet towards the end of November.
The bill, which is currently being assessed and certified by the state law advisers and will be introduced into parliament shortly, gives effect to the June 2019 Constitutional Court judgment that found the Electoral Act unconstitutional insofar as it does not provide for the election of independent candidates to the National Assembly and provincial legislatures.
Home affairs minister Aaron Motsoaledi briefed parliament’s home affairs committee on the contents of the proposed bill, which is based on the minority report of the ministerial advisory committee under the chairmanship of former minister Valli Moosa, which he appointed to advise on an electoral system that caters for independent candidates. Unlike the majority report, which proposed a system similar to that used in local government elections, the minority report did not recommend the demarcation of constituencies but based its proposed system on provinces as a whole being treated as constituencies.
Motsoaledi believed that the minority view was better suited to SA circumstances. The minimalist option would require relatively minimal changes to legislation and would incorporate independent candidates in the province-to-national list of 200 candidates, which will also be contested by political parties. The other 200 members of the National Assembly would be elected on a proportional basis of votes obtained by political parties.
One of the controversial provisions of the bill is that to qualify as an independent candidate, the individual could not have been a member of a political party for at least three months preceding the date of the election. This has been taken from the Kenya Elections Act. Motsoaledi said this was to prevent politicians standing as independents after failing to make it onto their party lists for the proportional representation part of the voting system. The legal team led by Steven Budlender SC, who drew up the draft bill, said allowing failed party candidates to stand as independents would undermine party politics though he cautioned that the constitutionality of the provision would have to be considered.
Among the qualifying criteria to stand as an independent candidate are that the individual would have to reside in the province in which he/she stands, can only contest seats in one province, must meet the voter support requirement and will have to put up a deposit. Motsoaledi said the Electoral Commission of SA (IEC) would determine other criteria and would stipulate the amount of the deposit and extent of voter support required. It was inadvisable he said to put this in the bill itself as it might change with time and would then require legislative amendments. Criteria were necessary to prevent an impractical abundance of independent candidates.
Another controversial provision in the bill which raised concern among MPs was that once an independent candidate had obtained the number of votes required in terms of the calculated quota of votes, the votes obtained in excess of this quota would be “wasted” and set aside. Motsoaledi said this was a common practice in the electoral systems in the 15 countries studied, none of which had found a solution to the problem. The legal team said in a memorandum on the bill that the votes could not be truly said to be “wasted” or lost as if the independent candidate was elected, then both the candidate and his/her supporters had achieved their objective. “The mere fact that she could also have been elected with fewer votes does not change that,” the memorandum said.
IFP MP Liezl van der Merwe noted that the provision could face constitutional challenge on the grounds that votes should have equal value and Congress of the People leader Mosiuoa Lekota also expressed concern. But Motsoaledi said the legal advice obtained by the department was that this did not render the system impermissible or unconstitutional.
If the independent candidate believed that he/she would get so many votes that would qualify them for two or more seats, they could form a political party.
Of concern to MPs was the limited time available for parliament to process the bill to meet the June deadline set by the Constitutional Court. Parliament goes into recess at the end of the week until the end of January and the committee will have to hold public hearings on the bill.
Only the election of independent candidates to the National Assembly will be provided for in the bill, as Motsoaledi said the constitution did not require or permit independent candidates to sit in the National Council of Provinces.
The legal team pointed out that an amendment to the Political Party Funding Act will be required to allow for the funding of independent candidates who would also be bound by the regulation of private donations contained in that act. Another issue that remains unresolved is what will happen when independent candidates vacate their seats, the question being whether the by-election would have to be held at a provincial level.
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