Good news and bad news for independents in ConCourt rulings on electoral law challenges

The Constitutional Court yesterday delivered good news and bad news for independent candidates who will make history next year when they contest the national poll.

In its long-awaited rulings on challenges to the Electoral Amedment Act regarding how independents will participate in general elections, the ConCourt:

• ruled that independents need only get 1 000 signatures in order to participate — thereby setting aside a requirement that they get signatures of 15% of the people living in the region they are contesting, which could mean needing as many as 10 000 to 14 000 signatures
• dismissed a challenge to the law allowing independents to contest only 200 regional seats in the National Assembly while permitting political parties to compete for all 400 seats (200 regional and 200 compensatory/proportional).

One South Africa Movement (OSA) and the Independent Candidate Association (ICA), who challenged the constitutionality of the electoral system, say that, in effect, the odds in next year’s election “are now stacked against Independent candidates and new participants – in favour of the old political parties”.

In a media statement released yesterday they say: “We do welcome the decision by the court to remedy the act by reading-in a clause that independent candidates and new entrants only require 1 000 signatures to contest elections.

“While disappointed in what this [the seat allocation] means for next year’s crucial election, we accept the judgment in the spirit of upholding the separation of powers. This legal journey has always been about constitutionalism and affecting social justice and fairness through the ballot box.

“Single party dominance has damaged our once promising democracy and securing a new electoral system to open the field, attract expertise and talent, and improve governance is first prize.”

In the ConCourt’s majority ruling on OSA’s challenge to the signature requirements, Justice Jody Kollapen cautioned that gains made in the Electoral Amendment Act, which for the first time allows independent candidates to contest elections, would be hollow if Parliament put up barriers. The court made a partial costs order in favour of OSA.

However, in the matter of ICA’s challenge to the 200/200 split in seats allocated in the National Assembly, the court rejected the applicant’s argument that independents have to get many more votes than political party candidates to win a seat, and its proposal to level the playing fields with a 350/50 split.

Writing for the court, Justice Nonkosi Mhlantla said the 200/200 split passed constitutional muster, because it was grounded in proportional representation and would have little risk of “overhang” (where there were more elected officials than seats in the National Assembly).

The court said that since independent candidates can only ever get one seat, they are unable to fulfil the requirements of proportional representation, hence they cannot be included in the compensatory list.

The court dismissed ISA’s application and ordered the parties to pay their own costs.

In yesterday’s media statement OSA and ICA note that today “marks exactly six years since the very first application was lodged to challenge our electoral system on 5 December 2017. It is therefore fitting that this six-year legal journey culminates today as the Constitutional Court hands down its judgment on the rules of play for Independent Candidates running for election in next year’s National and Provincial Elections”.

The statement also says: “We wish to highlight the strength and importance of civil society as a collective in both mobilising and representing key constituencies who remain politically homeless and underrepresented.

“It is deeply unfortunate that the element of participatory democracy was not achieved in this process. The predicament was self-created by Parliament and the Independent Electoral Commission (IEC) through a slow and unconstitutional legislative process and multiple extension applications at the Constitutional Court.

“We strongly condemn Parliament’s role in frustrating this process. At every juncture, they did all in their power to obfuscate, weaken, and dilute what the Constitutional Court intended: an overhaul of the system by which citizens elect – and hold to account – their public representatives.

“Parliament acted irresponsibly in carrying out its duties, requesting at least two extensions on the limitation of the timelines, rushing the public participation process, and ignoring input from experts, civil society and the public.

“There is still much work to be done by the Electoral Panel, and we will support it in its efforts. We remain committed to achieving a new electoral system that will encourage direct and accountable governance and honour the constitutional idea of ‘one vote is equal to one seat.’ We encourage new voices, new faces and new skills into the stale and outdated political environment.

“Finally, it must not be underestimated the important foundations laid by this legal journey, convinced that there will be a final triumph. There are no regrets as the journey is not over. With us the question is not what influence we can exercise now, nor how few men and women we have today, but how many will rise out of the younger generation who will be men and women of principle.

“We know the hour of victory will someday come.”

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