Electoral Amendment Bill hearings ‘ripe for constitutional challenge’

With the clock ticking on the June 2022 deadline given by the Constitutional Court for Parliament to reform the Electoral Act to accommodate citizen candidates there is growing concern from civil society groups that current public hearings on proposed changes to the law are merely an ANC ploy aimed at maintaining the status quo.

Major criticisms of the hearings which are being hosted around the country by the parliamentary portfolio committee on home affairs from March 7 to 23, is that they have been poorly advertised, that the public has not been adequately informed and educated about the process, and that only one bill is being presented — a token-change option favoured by the ANC that obstructs independents from registering as candidates and winning a fair share of seats.

In the New Nation Movement case in June 2020 the Constitutional Court ruled that the Constitution requires that citizens be allowed to contest national and provincial elections without joining political parties and gave Parliament 24 months to amend the law to comply. This decision was welcomed at the time by Christian leaders who, in recent years were at the forefront of campaigning for electoral reform in line with the letter and the spirit of the Constitution. Since the judgment, Christian leaders have been active in various civil society groups that were formed around the ideal of raising ethical and competent non-partisan representatives who are accountable to the communities which elected them.

One such leader, Dr Michael Louis, founder of the Independent Candidates Association and chairman of One South Africa Movement, said he believes that the current public participation process “is totally flawed and is ripe for a constitutional challenge”.

The public has not been educated and informed about the process, as is required for meaningful public participation, according to the Doctors for Life v Speaker of the National Assembly ruling of the Constitutional Court, he said.

He said he was “absolutely devastated” when he attended the public participation process in Bloemfontein, as only the government-sponsored Electoral Amendment Bill was on the table and when he asked the meeting about other bills that had been proposed they knew nothing about them. This resulted in missing a magnificent opportunity to hear from the public on what type of electoral system they want, he said.

The Council for the Advancement of the SA Constitution (Casac), in a letter supported by the New Nation Movement, the SA Council of Churches and the 70s Group, has warned the portfolio committee chairperson Mosa Chabane, that its public hearing proccess is flawed and open to a possible Constitutional Court challenge, reports Sowetan Live.

In the letter, Casac executive secretary Lawson Naidoo says the public has not been adequately notified of the hearings or been given sufficient time to prepare submissions. Naidoo also notes that the portfolio committee is asking the public to consider a bill based on minority views of a 2021 home affairs ministerial advisory committee but have not tabled the majority view of the committee or other proposals they received.

Mkangeli Matomela, national convenor of the Citizens Parliament, sent Gateway News a draft of an open letter they are sending to the home affairs committee, Parliament and the ANC in which they say that “attempts by the [home affairs portfolio] Committee and ANC to maintain the status quo of the unconstitutional party political dictatorship is an insult to the people of South Africa, democratic  order and the Constitutional  Court”.

The letter, which is headlined “The correct interpretation of the Constitutional Court Judgment, June 2020”, states that the “judgement is about restoration of the Constitutional  sovereign power and rights back to the adult citizens to decide how to reconfigure themselves as non-partisan citizens associations in order to make political choices, determine the type of government and nominate, elect, deploy and recall the type of leaders they want without being forced to be members of political parties”.

Both Constituency District and Proportional Representatives must be subject of adult citizens exercising their constitutional rights within their own community Assemblies, Councils, Sectoral Parliaments and Citizens Parliament, not the other way round where political parties are dictating terms to the adult citizens as if they are minors,” says the letter.

The letter raises the possibility, in the event of a failure to reach consensus on meeting the electoral reform deadline, of holding a national referendum conducted by the IEC under the supervision of the Constitutional Court, or, as a last resort declaring Parliament and the executive null and void as their election was based on an unconstitutional Electoral Act.

Dr Arno van Niekerk, of Raising Righteous Rulers, said they share concerns about the current public hearings which were being manipulated to use the public to support the views of the ANC.

“Our hope is that there will be much more national dialogue and also opportunities to make submissions and contributions,” he said.

He said the bill being promoted by the government is not sufficiently inclusive and lacks substantial changes required to meet the requirements set by the Constitutional Court.

He said RRR appeals to Parliament to strongly consider the preferable People’s Bill (submitted by Cope leader Mosiuoa Lekota early last year), or even look at a combination of the People’s Bill and the Government Bill.

He called on citizens to participate in the electoral reform hearing “because if we stay silent now it might cost the nation and we are on a brink, economically, politically. There’s a lot of trust that needs to be restored and it’s really up to righteous leaders in community to stand up and take the lead”.

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One Comment

  1. Michael Atkins

    The chief problem with the Electoral Amendment Bill is that unused votes for independent candidates are discarded. Independents will automatically gain far fewer seats than their collective share of the vote. This means that parties gain MORE seats than their share of the votes, with the largest party always gaining the most.

    This means the the result is not sufficiently proportional to comply with the Constitution. The only remedy for this problem is to have some form of Constituency system, combined with PR, similar to how local government works.