Dr Michael Louis chairman of One South Africa urges government to drop its flawed Electoral Bill now and join hands to achieve optimal voting system
In a month’s time, the Constitutional Court-ordered deadline given to Parliament to change the laws that govern our voting system at national and provincial level will arrive. Considering it is conceivably the single most important change in law since the dawn of democracy, it remains both a mystery and a concern that Parliament will fail to meet this deadline.
In the seminal New Nation Movement Judgment of June 2020, Parliament was given 24 months to amend the current laws to make provision for independent candidates to contest in national and provincial elections. The court said, correctly so, that the current laws are unconstitutional as far as they force citizens to seek elected office only through the vehicle of political parties.
A Member of Parliament is meant to have an obligation to the Constitution and to the general population; they are meant to represent the interests of the people over and above all else. This is not how our democracy has turned out. Instead, the politicians put party before country repeatedly and fail to honour the spirit and letter of the Constitution.
The Constitutional Court has finally – and legally – handed Parliament a once-in-a-generation opportunity to reform the system. The conversation about electoral reform has been going on for more than 23 years and there have been many false starts.
When President Nelson Mandela left office in 1999, he called for a review of the electoral system. In 2002 President Thabo Mbeki established a task team, led by the late Frederik van Zyl Slabbert, to examine this matter. In 2003 the electoral task team released its final report. The report called for an alternative electoral system which combined constituency and proportional representation models, a mixed system. In 2006 the National Assembly appointed an independent panel to assess the electoral system, and the committee found that the system needed urgent reform. In 2017 the Motlanthe High Level Panel recommended the amendment of the Electoral Act to provide for a system that makes MPs accountable to defined constituencies.
Best version of reform
As we approach the finish line of this 23-year journey, we must take care to implement the best version of reform for our sake and the sake of future generations. Therefore, we are offering an olive branch to Parliament, making a sincere call to not proceed with its current, unconstitutional Electoral Bill.
The bill is unconstitutional for at least four reasons. (1) the discarding of excess votes, (2) independent candidates limited to half the seats in Parliament, (3) the additional threshold requirements for independents to stand for election, and (4) the unsolved matter of when vacancies in Parliament arise through resignation or death.
The One South Africa Movement (OSA), which I chair, has raised these concerns of constitutionality with Parliament in several fora. These include written submissions, oral submissions, public hearings, and formal letters.
After attending the last two meetings of Parliament’s Home Affairs Committee, I am even more concerned that our caution has not been heard nor dealt with by both the Department of Home Affairs and legal division of Parliament.
It remains our position that the system in the current bill is not achievable and unconstitutional. We wish to appeal to Parliament to avoid a lengthy and costly litigation process that will ensue if it proceeds with the bill in its current form.
In this light, I have this week approached Mosa Chabane, the chairperson of the Home Affairs Committee, to offer insight and assistance once again. The committee deserves the opportunity to have a full presentation by Michael Atkins, an actuary, as to the numerical interpretation of the current bill which will provide an understanding of its numerical effect regarding proportionality and constitutionality.
In truth, the public has no idea how the government’s bill arrived in Parliament. Notwithstanding its fundamental flaws, there exists no logical flow as to how this version of a policy was forced on Parliament.
‘Pulled from the sky‘
Valli Moosa’s submission to the committee was a testament to this. He asserted that in every submission before the Ministerial Advisory Committee (MAC) which he chaired, this bill’s intention and effect never appeared from a single submission to the MAC. It is like it was pulled from the sky
OSA is working with the whole of civil society to ensure this happens. Later this month, a roundtable discussion will be facilitated with the aim to resolve on a united way forward to achieve a more accountable and fair electoral system for generations to come. Organisations involved include Nelson Mandela Foundation, OUTA, Helen Suzman Foundation, Futurelect, Makhanda Citizens Front, FW De Klerk Foundation, Rivonia Circle, Ahmed Kathrada Foundation, CASAC, Independent Candidate Association and others.
It is in the interests of all parties – and the South African people – for this process to be an inclusive and transparent process that achieves the most optimal electoral system. We appeal to Parliament to choose this route.
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