ConCourt ruling leaves independent candidates at disadvantage

Dr Michael Louis chairman of the Independent Candidate Association during an SABC interview this week (PHOTO: Youtube screen grab)

The Constitutional Court on Monday dismissed a challenge to the Electoral Amendment Act by the Independent Candidate Association (ICA) which argued that the law required independent candidates to win many more votes than political parties in order to secure a seat.

Dr Michael Louis chairman of the ICA said in an interview with the SABC on Tuesday that they accept the ruling which impacts how independent candidates will participate in the national polls for the first time. He said they believe the Constitutional Court “is independent and a great court”.

“But the facts remain that an independent candidate has got very high thresholds to get a seat in Parliament. The facts still remain that a political party will need round about 45 to 50 000 votes to get a seat, while an independent candidate will need about 85 to 95 000 votes to get a seat.” he said.

‘Constitutional Court got it wrong’
“So we believe the Constitutional Court got it wrong,” he said.

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“The facts are going to be that an independent candidate with 67 000 votes will not get a seat in Parliament, while a political party with 43 000 votes will get a seat in Parliament. Those are the facts. And we believe that that’s unconstitutional, and that will not pass constitutional muster. So, I think post election it might be back to the court.”

Asked by the SABC what the ConCourt was thinking when they found that the law’s allocation of 200 regional seats to independents and 400 seats – made up of 200 regional seats and 200 compensatory seats – to political parties – passed constitutional muster — and when they rejected ISA’s request for the right for independents to contest 350 seats, Louis said he believes the court’s ruling was “very technical”.

He said: “They came up with two criteria of why they came to the result they did. The first thing is they find it difficult that the judiciary intervenes with what Parliament decides. And so they looked at the rationality tests regarding all the human rights issues, and they found that Parliament did succeed in that.

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“But then they spoke about the overhang, which we always knew was a question. And it’s complicated for the views about the overheads [where there were more elected officials than seats in the National Assembly]. But the problem that they had is that we didn’t come with a remedy on overhang and they couldn’t rule on it.”

Louis, said Tuesday marked exactly six years since he embarked on a legal battle for the constitutional right for independents to contest national polls. Speaking on the road ahead, he said: “And we just need to keep on fighting. I’m feeling bullish. I’m really feeling bullish because I want great new leaders to stand in this country. I really want people to nominate the best leaders that they can touch and feel and that represent the views. And so we are going to go back to the drawing board to see what we can do. We’re not giving up. It’s been a six year journey. It’s another long journey but that’s what democracy is about.”

He added: “So we believe there’s a lot that we need to grapple with; a lot that the courts need to grapple with. And that’s why the electoral panel that the minister’s going to announce soon is going to have another two years to revamp this Electoral Act.

“What happened with this historic judgment? It sort of put stakes in the ground. How do you see proportional representation? How do you see compensatory seats what is right what is wrong? What is rational and so we just have to walk this path.”

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