Twenty two civil society groups that sent a letter to Parliament a week ago, threatening the possibility of legal action over the Electoral Amendment Bill, are holding an urgent meeting at the end of the month to consider their next step.
The groups have received no response from the Portfolio Committee on Home Affairs to their letter sent on August 11 challenging the constitutionality of the bill based on a minority view of a ministerial advisory committee (MAC) on the form the amendment stipulated by the Constitutional Court should take, said Dr Michael Louis of the Independent Candidates’ Association (IAC), one of the signatories to the letter.
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In June 2020 the ConCourt declared the Electoral Act unconstitutional because it excludes independent candidates from standing for Parliament. It suspended the declaration for 24 months to give Parliament time to amend the law — and later extended the deadline for a further six months until December 10 this year to allow time for adequate public participation in the process.
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Louis told Gateway News that Parliament is “playing with fire” by refusing to consider all options for amending the law that goes to the heart of SA’s democracy, and by ignoring civil society groups’ requests to meet with the portfolio committee to address their serious concerns. Their concerns include the committee’s failure to engage with the majority view of the MAC, repeatedly side lining their submissions and attempts to engage with the public participation process, and a rushed public process which falls short of constitutional standards and criteria established in a 2018 ConCourt ruling in a matter involving the SA Veterinary Association and the government.
“They are plunging us into a constitutional crisis,” he said, noting that the December 10 deadline for amending the law does not allow enough time to complete the remaining proscribed steps and meet the constitutionally-required public participation process.
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“And so we are calling an urgent meeting at the end of the month with all 22 civil society organisations to determine the next steps.
“We are very concerned regarding the status of the bill and the way parliament is dealing with it. But saying all that, we will continually believe that litigation is our last resort. We will do everything in our power to act on behalf of civil society to have the best country that we can offer for the 2024 elections,” he said.
Christian marketplace leaders, including Louis, have been at the forefront of promoting electoral reform that they believe will serve voters by opening the door for electing godly public representatives who will be accountable to their constituencies and not to political parties.
Louis has previously stated that last June’s ConCourt ruling requiring the Electoral Act to be amended was a miracle.
With the current scenario in which it is hard to see — with or without the matter going to court — how the Electoral Act can be be amended with the wisdom and justice the people of SA deserve before the elections in 2024, surely it is time for another miracle.
The civil society organisations who wrote to the portfolio committee are:
- Accountability Lab South Africa
- Accountability Now
- Ahmed Kathrada Foundation
- Castro & Monica Mayatula Foundation
- Centre for Good Governance and Social Justice NPC
- Citizens of Conscience Foundation
- Civic Movement for Change
- Constitution Hill Trust
- Council for the Advancement of the South African Constitution (CASAC)
- Defend our Democracy
- Dullah Omar Institute
- Gandhi Development Trust
- Independent Candidates Association
- June and Andrew Mlangeni Foundation
- Media Monitoring Africa
- My Vote Counts
- Organisation Undoing Tax Abuse
- Rivonia Circle
- South African Conversations
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Mike Atkins has analysed election results for years. This is what he wrote in a post in March this year:
Michael Atkins
16 March 2022 at 12:38
ELECTORAL AMENDMENT BILL IS UNCONSTITUTIONAL
Here is another round of trying to articulate WHY the proposed electoral system cannot work.
Proportional representation MEANS parties. Simply “adding” individuals creates numerical distortions.
Votes and seat allocations make up a SYSTEM. If you change the numbers in one part, you affect the WHOLE.
After seats are allocated to independents, those seats, plus ALL VOTES for independents are removed from the calculations for parties.
The (incurable) problem arises because there can NEVER be correct proportions of votes for independents and seats won by independents. This is because only a single seat can be awarded to an independent candidate, whereas any number of votes can be cast.
Thus, after removing independents’ seats and votes, the resulting calculations for parties are distorted from the original.
It is thus GUARANTEED that there will be a discrepancy between the votes cast for parties, and the numbers of seats won by those parties.
Currently, any such discrepancies are LIMITED to a number of votes counting only a fraction of one seat.
Under the Bill, this limit is removed. However big the discrepancy between total votes for independents and seats won by independents, the same discrepancy will exist as a mirror image among the parties.
The largest parties “gain” the most in this way. If independents win 10% of the vote, but win 3% of the seats, 7% of the total vote is discarded.
But, because this is a system, the hole left by that 7% is filled by (effectively) inflating each party’s votes in that proportion.
One problem is that this likely adds NO seats for smaller parties, but MANY seats for the largest party.
In this scenario, the ANC “gains” 16+ seats in the National Assembly, if one compares their vote share to their seat share.
There are some significant details of the Bill that amplify the discarded votes for independents, and hence amplify the distortions.
Firstly, independents contest only 200 seats, split among the provinces.
In these calculations, the full number of votes allocates half the seats. Thus, an independent needs twice as many votes as parties for seats in Parliament. For voters, each of these votes counts half. But the effect on the SYSTEM is that half of all successful votes for independents are discarded.
This means that half of each successful vote for an independent is “given” to the parties, with the largest party gaining the most.
There are three other novel ideas in the Bill
If an independent candidate does not meet the Quota for a seat, their “unused” (remainder) votes cannot compete with the remainder votes of parties for the few remainder seats that cannot be filled by whole quotas.
Parties can thus win seats with fewer votes than independents.
The formula for the Quota calculation for independents is different from the normal Droop quota that has always been used. This RAISES the quota for independents, compared to parties.
There is no explanation given for these last two adjustments.
Finally, the 200 compensatory seats are allocated by a separate calculation (unlike anything similar done at present), rather than an overall calculation that balances the effect of the first calculation.
This bakes in the distortions of allocations in provinces. It takes seats from smaller parties, and gives them to the largest party, quite apart from anything that happens with independents.
In the last 4 elections, this system would have given the ANC between 5 and 8 seats as a bonus.
Aside from raising the threshold for independent candidates, the SYSTEM is unconstitutional.
This is because the discrepancy between parties’ VOTE SHARE and SEAT SHARE do not have numerical limits.
The outcome cannot be said to be, “in general, proportional representation”.
This is an article by Mike Atkins, published in BusinessLive:
https://www.businesslive.co.za/bd/opinion/2022-03-30-michael-atkins-crunching-the-numbers-shows-electoral-amendment-bill-cannot-work/