The Electoral Commission of SA (IEC) will on Tuesday tell the Constitutional Court that lowering the supporting signatures requirement for independent candidates to run in next year’s elections from 10,000 to 1,000 might compromise the fairness of what is expected to be a hotly contested ballot.
The electoral body also says in its submissions before the apex court that it foresees several problems arising from having a two-page ballot paper, which would be required if there are more than 96 contestants.
“The pages of the ballot may become separated — for example, in the process of being inserted in the ballot box by a voter, or when other voters add theirs to the ballot box, or when ballots are removed for counting purposes. Should this occur multiple times, it will be impossible to effect a proper reconciliation of the votes. This could implicate the credibility of the elections,” the electoral body said in its submissions.
“A secondary, but not unimportant, matter is the cost implications for more complex or multipage ballot papers.”
The IEC submissions are in response to an urgent application launched by Mmusi Maimane’s One SA Movement (OSA) and Independent Candidate Association SA (ICA), which are challenging aspects of the new Electoral Amendment Act as it places an “impermissible ... barrier to entry” with high signature requirements, as well as unfair seating allocations for the National Assembly.
The two entities want the signature requirements to be reduced to 1,000 supporting signatures for independent candidates who will be contesting the general elections for the first time in democratic SA.
The IEC says the proposed 1,000 will not suffice to achieve the legislative purposes of preventing what it called “frivolous participation”.
It also says in its papers that should the court rule in the OSA and ICA’s favour it would have to redesign the ballots to include either a second column or a second page.
“This would already set back the commission’s timetable as the design of the ballots has been finalised, with the tender for production to be advertised in mid-August 2023.”
The electoral body, which is not opposing the application, says up to this month 332 political parties are registered to contest 2024’s elections.
The home affairs department and parliament are opposing the application.
The OSA in its papers says the signature requirement constitutes an unjustifiable infringement of the rights of independent candidates.
“We submit that it is significant that none of the respondents has explained why independent candidates must meet the same signature threshold that political parties must meet, nor why this qualification is necessary, almost three decades later to protect the integrity of the elections.”
Regarding the seat allocation in the Electoral Amendment Bill, the IEC said the split is 200 seats based on regional lists of candidates and another 200 seats based on national lists of political parties.
The ICA and OSA argue that this too is unconstitutional.
The ICA says this split is unfair as it requires a candidate to have more votes than a party. The solution is to shift from a 200/200 split to 350/50 split, in favour of regional votes where they can compete.
In 2020, the Constitutional Court declared the Electoral Act unconstitutional as it did not allow for independent candidates to be elected to the National Assembly and provincial legislatures. Adult citizens could be elected only through membership of political parties.
The apex court ordered parliament to fix this defect in the law. This led to the Electoral Amendment Bill, though it was notoriously delayed. It was signed into law by the president in April 2023, becoming the Electoral Amendment Act after much contestation.
Despite this new law addressing concerns to do with independent candidates, the ICA and OSA still had issues with it.
The ICA is made up of about 30 citizens who want to stand, or are considering standing, in the 2024 elections. It has played an active part in the amended act.
The OSA is a registered nonprofit organisation that includes some independent candidates.
Because of how close SA is to the elections, the ICA and OSA argued they had to bring the case directly to the Constitutional Court, instead of going via the “normal confirmation processes routes which means going to the high court”.
The matter will be heard on Tuesday.
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