SA’s new electoral law faces challenge in Constitutional Court today

The Independent Candidates Association (ICA) says it will be launching a challenge in the Constitutional Court today (Friday May 26) against the controversial Electoral Amendment Act which was signed into law by President Ramaphosa in April.

“We remain of the belief that this act is unconstitutional and that it does not pass the muster of ‘one vote is equal to one seat’ and does not pass the constitutional provisions of ‘in general proportionality’, said ICA founder Dr Michael Louis.

He noted that the ICA and civil society have been actively involved since 2018 in a battle to ensure that all citizens enjoy their constitutional rights including the rights to fair elections.

He said that regarding the Electoral Amendment Act 2023, “Parliament has failed civil society , disregarded our voices and submissions and has passed an Act that is dishonouring, disempowering and will be challenged”.

“Parliament from the start has regarded the process as an administrative process and not a process of human rights,” he said, of the law that was finally passed in April after Parliament missed two deadlines set by the Constitutional Court in 2020 to remedy the Electoral Act which failed to accomodate independent candidates as required by the Constitution.

In its Constitutional Court challenge the ICA will detail various areas in which it believes that the new electoral law infringes constitutional rights and principles. A number of its objections relate to the so-called 200/200 split whereby independent candidates are eligible to contest 200 seats while political parties will contest all 400 seats in the House of Assembly.

“The ICA will  be lodging papers to ask the court to be called upon to scrutinise whether the electoral system fairly selects candidates for the purposes of the representative democracy. If it does not, then the majority has no legitimacy to govern,” says Louis.

In April the Electoral Commission welcomed the signing of the Electoral Amendment Act, saying it provides the legal certainty required to prepare for next year’s elections. IEC chair Mosotho Moepya told journalists at the time that taking the law to court could negatively impact election preparations.

Louis sad today that “the IEC has on numerous occasions warned that anybody that wishes to challenge the Electoral Act could place the 2024 elections in jeopardy. We confirm that our submissions to Parliament from February 2021 have been consistent that the system proposed is unconstitutional and will not pass constitutionality. Till today, none of our factual submissions have been responded to or answered”.

“We remain committed to be a constructive force and our remedy to the courts after 9.6 million mathematical simulations, signed off by two actuaries, is to amend the seat allocations to Parliament to 350 direct election seats in the regions and 50 compensatory seats,” he said.

He said the ICA believes its proposed allocation is fair, and limits excess and wated votes and gives independents a fair playing field.

“After five years of the trajectory of electoral reform I have come to the conclusion that there are no perfect options . However , nobody is coming out to save us and there is no knight in shining armour. It remains up to us to remain courageous , sincere in our motives and do what is constitutionally right.

“We owe it to the people we serve and choose our collective legacy,’ he said.

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