Outcome of electoral law challenge ‘in God’s hands’

The legal teams of the Independent Candidate Association and One South Africa movement in the Constitutional Court where they challenged the Electoral Act this week

After two days of intense debate on matters which directly affect next year’s general election and go to the heart of South Africa’s democratic system, the Constitutional Court yesterday reserved judgment on two applications challenging the constitutionality of the Electoral Act.

With the clock ticking into the limited time available for the Independent Electoral Commission to prepare for next year’s election, which needs to be held between May and October, there is pressure on the court to come out with an order by the end of September.

The applicants, the Independent Candidate Association (ICA) and One South Africa Movement (OSA), argued that the electoral law which was passed earlier this year disadvantages independent candidates who will be contesting a national election for the first time next year. The law was amended after the ConCourt made an order in 2020 requiring Parliament to reform the legislation to allow independents to participate in national elections.

OSA says the law’s requirement for candidates to get 10 000 to 14 000 signatures to contest for office is a major barrier to entry for independents and should be amended to 1 000 signatures across the board which has been the norm for a long time. The ICA says the law unfairly restricts independent candidates to standing for 200 regional seats while political parties may contest all 400 seats (200 regional and 200 proportional). The ICA says independent candidates should be able to contest 350 of the 400 seats — a figure determined as fair by actuaries they consulted.

In view of the election time constraint, the applicants are asking the court to write in a declaratory order to remedy the Act.

The legal team for the respondents — the President, the Speaker of Parliament, the Minister of Home Affairs and the IEC – argue that the court would be stepping into the parliamentary domain if they were to write in clauses that override those arrived at through the parliamentary process. Questions asked by some of the justices during this week’s hearing indicated they were grappling with the issue of the separation of powers and how far the courts can intervene. The applicants argued there are precedents for intervention.

Dr Michael Louis, chairman of the ICA and OSA commented last night that both cases were highly contested and that everybody — the applicants, the respondents and the court — “really just gave their very best”.

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“And so I honestly can’t tell you what the outcome is. All I know is that God is in control. This is about fighting for a vibrant democracy. This is about fighting for equal rights. This is for fighting for human dignity. This is for fighting for justice. This is for fighting that God will save our nation, bless our nation, and raise up a new generation of leaders that can take us over the Rubicon and into the promised land of milk and honey,” he said.

He said, in view of the need for the IEC to start with election preparation, he expects an order is likely before the end of September but he does not expect the judgment to come out by then.

“I think we [the applicants] are in with a chance — as difficult as that is, and that is important,” he said.

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