The bill on electoral reform prepared by the department of home affairs to allow for the election of independent candidates to provincial legislatures and the National Assembly, does not provide for by-elections in the event that an independent candidate resigns or dies.
MPs expressed concern on Tuesday that without a by-election, constituencies that elect independents would be left without a political representative, possibly for years before the next national and provincial election. Political parties are able to fill vacancies as and when they arise.
Home affairs minister Aaron Motsoaledi and the leader of the bill's drafting team, advocate Steven Budlender, briefed parliament’s home affairs committee on the Electoral Amendment Bill. The bill aims to bring SA’s electoral law into compliance with a Constitutional Court judgment that the country’s electoral law was unconstitutional insofar as it does not provide for the election of independent candidates.
The bill which has been certified by the state law advisers was introduced into parliament by Motsoaledi in January.
In terms of the bill, independent candidates will be elected on 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. Only the election of independent candidates to the National Assembly is provided for in the bill as the constitution doesn’t require or permit independent candidates to sit in the National Council of Provinces.
Budlender said the reason no provision had been made in the bill for filling vacancies left by independent representatives was that that could lead to very frequent by-elections, which would have to take place province-wide with the whole province voting. This would be “extremely disruptive and costly”, he said, adding that the drafters of the bill did not see any alternative practical solution. “It might be unfortunate but it is a consequence of the way this works practically.”
Motsoaledi pointed out that the bill provided for a multi-member constituency at provincial level, which would include independent and political party representatives. So it would not be the case that a constituency would be left without a representative, as would be the case in municipal wards that elect independents who vacate their positions.
He noted that the private member’s bill proposed by COPE leader Mosiuoa Lekota — the Electoral Laws Amendment Bill — also did not provide for the filling of vacancies. In contrast to the government’s bill, Lekota’s bill provides for the division of the country into 52 constituencies. Both this bill and the department’s bill will be discussed by the committee next week.
Another issue of concern to MPs was that votes for independent candidates in excess of the threshold for election would be discarded but Motsoaledi pointed out that this was a common practice internationally.
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.
Freedom Front Plus leader Pieter Groenewald said his party supported the bill.
Also of concern to MPs was whether parliament would meet the June deadline set by the Constitutional Court for it to amend the law, seeing that there has to be a process of public participation and that the bill also has to be processed by the National Council of Provinces.
Senior parliamentary legal adviser Siviwe Njikela advised that parliament make an early application to the court for an extension of the deadline. “If there has to be any application for an extension it has to be done at the earliest possible time and this might be the time if the committee is satisfied that it will not have enough time. This might be the right time so that we are not seen to be lax in how we are approaching the Constitutional Court.
“In the previous judgments where we have approached the Constitutional Court, the issue is always that an extension is not there for the taking. It must be motivated, it must be substantiated. The sooner you realise the danger of not complying with the court order, the better for you to approach the court in good time as that helps to demonstrate your bona fides. Our advice is the sooner the better,” Njikela said.
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