Proposed amendments to SA’s electoral system did not fulfil the Constitutional Court’s ruling that there be substantive and meaningful participation by independent candidates in national and provincial elections, parliament’s home affairs committee was told by a number of presenters on Tuesday.
The committee is holding two days of public hearings on the Electoral Amendment Bill before embarking on a nationwide process of public hearings in all provinces.
There were also pleas by the One SA Movement (OSA) and the School of Governance for the public to be given the opportunity to comment on what they regarded as the more desirable private member’s bill — the Electoral Laws Amendment Bill — introduced by COPE leader Mosiuoa Lekota and regarded as unsuitable by the committee. Lekota also believed the public should have the opportunity to consider his bill.
Home affairs minister Aaron Motsoaledi has said previously that the proposals in Lekota's bill would take too long to implement and would not be in place before the 2024 national and provincial elections.
While the Electoral Amendment Bill stipulates that independent candidates will represent regions (provinces), Lekota’s bill provides for their representation of demarcated constituencies. The Lekota bill also proposes a change from a closed-list proportional representation system to an open list system.
OSA national spokesperson Mudzuli Rakhivhane said the Electoral Amendment Bill provided for votes in excess of the threshold of votes required for an independent candidate to win a regional seat to be discarded. Political parties on the other hand receive seats in proportion to their share of the vote.
“The discarding of surplus votes has a deleterious effect on the right of citizens to vote and on the proportionality between vote share and seats. The right to vote in the constitution must be interpreted as a right to a vote that counts equally, or is of equal value to the votes of others,” she said.
“Full equality of effect can only be achieved by a pure proportional representation system. The discarding of surplus votes diminishes the proportionality of our electoral system,” Rakhivhane said.
The transfer of surplus votes to another independent candidate as proposed in Lekota’s bill gave better effect to the principle of equality of votes for all and would achieve a greater degree of proportionality between vote share and seats.
In terms of the Lekota bill, independent candidates would be able to declare, prior to election day, another independent candidate who can receive their surplus votes. Another advantage of the Lekota bill, Rakhivhane said, was that it allowed independent candidates to contest all 400 seats in the National Assembly and did not restrict them to 200 seats, as did the government’s bill. This restriction gave political party candidates a greater advantage.
She also objected to the qualification criteria for an independent candidate to stand for election, namely having the support of a minimum number of registered voters in a region and putting up a deposit. She said this limited their constitutional rights as they lacked the financial and organisational support enjoyed by political parties.
Another objection was that the government’s bill provided that where an independent candidate’s seat became vacant, no by-election would be held, which Rakhivhane said deprived voters of representation in the legislature.
“We urge parliament to correct these constitutional defects in order to avoid a court challenge and further delay this already slow-moving process. To not do that would be to jeopardise the national election in 2024,” Rakhivhane said.
School of Governance representative Zarina Prasadh argued that the deficiencies in public participation in the bill meant that it failed to comply with the Constitutional Court ruling. She also believed that the bill was not inclusive of independent candidates as the barriers to entry (the qualification criteria) were “extraordinary”. While independent candidates had been accommodated by the bill, they had not been substantively included as required by the Constitutional Court.
Organisation Undoing Tax Abuse (Outa) representative Rachel Fischer agreed that independent candidates had not been substantively integrated by the bill into the electoral system. She highlighted the discriminatory qualification requirements and the unequal proportional representation provided for them.
Independent candidates should be free to associate with other independent candidates and be able to transfer their votes. She also disagreed with the discarding of votes and complained about the lack of adequate time for public participation on the bill.
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