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W17 independent candidate course 24 april 2023

FOUR POLITICAL PARTIES FAILED TO SUBMIT 2021/2022 FINANCIAL STATEMENTS - IEC

The parties include the African Independent Congress (AIC), Congress of the People (Cope) and National Freedom Party (NFP).

JOHANNESBURG - The Independent Electoral Commission (IEC) has announced that four political parties have failed to submit their 2021-2022 financial year statements to the commission, as required by the Political Party Funding Act.

The parties include the African Independent Congress (AIC), Congress of the People (Cope) and National Freedom Party (NFP).

The Pan Africanist Congress of Azania (PAC) submitted its financial records after the prescribed deadline of 30 September.

This revelation was made at a media briefing at the commission’s headquarters in Centurion on Tuesday, where it gave a report on the submissions of the audited statements.

The act requires registered political organisations to submit audited annual financial statements as a measure to monitor donations made to parties.

The IEC’s report has revealed that out of the 11 represented parties that submitted their annual financial records, the African National Congress (ANC) and African Transformation Movement (ATM) also failed to submit their financial statements relating to party funding.

However, the commission said the governing party has rectified its omission by submitting revised statements after the prescribed 30 September deadline.

IEC chairperson Mosotho Moepya said that while some parties did not comply with the Political Party Funding Act regulations, most of them received unqualified audit opinions from independent auditors.

"In respect to the ANC, the independent auditor’s opinion was a disclaimer. The independent auditor’s opinion indicated that this was with regard to statements relating to direct funding."

Moepya said a total of R145 million was disclosed in the 2021-22 financial statements of registered political parties.

W16 independent candidate course 17 april 2023

RAMAPHOSA SIGNS ELECTORAL AMENDMENT BILL INTO LAW

The Electoral Amendment Bill will now allow independent candidates to stand in provincial and national elections.

CAPE TOWN - President Cyril Ramaphosa has signed the Electoral Amendment Bill into law, which will now allow independent candidates to stand in provincial and national elections.

The bill was passed by the National Assembly in February after a Constitutional Court order to amend the law was handed down in June 2020.

Parliament had requested two extensions to the 24-month deadline imposed by the court, to revise the law.

After a legal challenge mounted by the New Nation Movement, the Constitutional Court declared the electoral law unconstitutional for only allowing political parties to be represented in provincial and national legislatures.

The new amendments stipulate the requirements that will have to be met for individuals who will want to contest national elections as from next year.

The revised law also includes a new formula for the allocation of seats.

Presidential spokesperson Vincent Magwenya: "The Electoral Amendment Bill makes a significant milestone in the evolution of our constitutional democracy by expanding electoral participation and widening the pool of leadership choice for the National Assembly and provincial legislatures. The bill presents a development that can only enrich and sustain our constitutional democracy."

The minister of Home Affairs will now also have to establish an independent panel to consider broader electoral reform after the 2024 polls.

W10 independent candidate course 9 March 2023

ANC WANTS STRICTER QUALIFICATIONS FOR INDEPENDENT ELECTION CANDIDATES AND NEW PARTIES

The ANC wants to make it harder for independents and new parties to participate in national and provincial elections.

The ANC wants to make it harder for independents and new parties to stand in national and provincial elections than is currently proposed by the Electoral Amendment Bill.

As the public participation process on the bill got under way this week, the ANC pinned its colours to the mast, with a very long statement explaining its position to the bill.

Under the guise of ensuring the "will of the people" by preventing long ballots, the ANC proposes stricter qualifications for independent candidates and new parties.

The bill was necessitated by the Constitutional Court's judgment on the New Nation Movement case in June 2020. The judgment found the Electoral Act 73 of 1998 unconstitutional, to the extent that it required adult citizens to be elected to the National Assembly and provincial legislatures only through their membership of political parties.

While the ruling gave Parliament two years to amend the legislation, Parliament deferred to the executive to draft the legislation. The bill was only approved by Cabinet late last year.

Home Affairs Minister Aaron Motsoaledi appointed a Ministerial Advisory Committee (MAC) chaired by former minister Valli Moosa. The MAC's majority recommendation envisaged a system that provided a mixed single-member constituency and proportional representation (PR) system.

Motsoaledi and his department went with the minority advice and drafted a bill that relied solely on a PR system, amending it as little as possible.

This was in line with the ANC's policy position.  

"The ANC has always supported a Proportional Representation system as it is best suited to a country as diverse as ours in terms of race, class and language. It ensures that every political viewpoint shared by more than one quarter of one percent of the population is able to find representation in Parliament and speaks on behalf of that constituency," said the ANC's statement.

"We have never supported a first past the post constituency system as it is very difficult to reach the same level of diverse representation when only one, or maybe a handful of people are selected to represent a distinct geographical area. Each geographical area has its own levels of diversity and 

"The PR system has meant that even small parties that get as little as 0.25% of the vote remain in Parliament and have a voice in every legislature."

The party further said that the PR system boosted the representation of women, youth and other marginalised groups.

"We broadly support it as the best option for implementing the Constitutional Court order. We do, however, have some very serious concerns about the practicality of some of the proposals currently contained in the Bill."

Ballots

Among the ANC's concerns were that the system proposed by the bill could lead to very long, impractical ballots.

"Ultimately, if voters find it difficult to vote and find their preferred choice on a ballot, the election will not reflect the will of the people. We need to review the qualifications to stand as an independent candidate and as a new party. If we do not make it stricter, we can have thousands of candidates.

"We propose that new parties who are not yet represented in a legislature or Parliament, and independent candidates, should be able to demonstrate that they have voter support and have some chance of winning a seat. We suggest that the threshold should be at least one third of the quota needed for one seat in the previous election."

While extolling the virtues of proportionality the PR system allowed, the ANC also didn't want too much of it.

"Potentially, we can have many small parties and independents occupying key seats that hold a balance of power in a legislature or Parliament where no party gets over 50%.

"This is happening at municipal level and often leads to unstable and temporary coalitions. This could be much worse at national and provincial government where government could be paralysed by small parties and independents who represent only tiny fractions of voters, but who can make stable governance impossible."

The ANC proposed a two-stage process where all who met the full quota for one seat, were awarded a seat. The remaining seats should then be given to the parties with the highest average of votes per seat won.

"An independent can obviously only occupy one seat and their surplus votes will be discarded.

"Any party that has surplus votes should have these added to their total and divided by the number of seats already won by them. The party with the highest average will get a remainder seat. This is the only way proportionality can be maintained and we can prevent a situation like we have currently where many parties with less than 0.25% support still occupy seats."

Public hearings

Meanwhile, public hearings on the bill got underway in Richards Bay, KwaZulu-Natal, on Monday.

"All participants speaking at the Richards Bay public hearings underscored their support for the Bill, albeit with amendments to remedy some of its shortcomings. One such shortcoming is that the Bill does not state explicitly the allocation of seats for provincial legislatures. This element is stated explicitly for national Parliament.

"The bill currently proposes 400 seats for the National Assembly, with 200 seats elected from nine provinces or regions (200 regional seats) and the other 200 seats will be compensatory seats, which will be contested by political parties," said a statement from Parliament.

"There was also a concern that the bill might have unintended consequences, especially for the representation of women. The argument was made that South Africa's current patriarchal society might disadvantage women, who are often poorer than men, from raising the required election deposit.

"This will preclude them from contesting positions. The suggested remedy was for the bill to regulate specifically the allocations for women and men."

Other concerns were that the bill could be unfair in its current form. It might lead to a situation in which Gauteng and KwaZulu-Natal occupy 50% of the regional seats based on population and number of votes received.

Another delegation of the committee was in Thulamela, Limpopo.

"While expressing their support for the bill and its intention to allow citizens to contest national and provincial elections without political party membership, some residents questioned the implementation of the new system," said a statement from Parliament.

"Others warned that the proposed changes to the electoral system could result in very long ballot papers, and that multiple-page ballots could be problematic to both the Electoral Commission and the voters, and require more days for voting.

"Some residents told the committee that the bill was long overdue, and that Parliament and provincial legislatures should be constituted the same way as municipal councils, where independent candidates contest for elections without membership of a political party."

On Tuesday, the Portfolio Committee on Home Affairs' delegations were in Pietermaritzburg, KwaZulu-Natal, and Lenyenye, Limpopo. 

W10 TRAINING FOR POLITICAL PARTIES & COUNCILLORS 8 March 2023

NCOP GIVES DELAYED ELECTORAL BILL THE NOD

Cape Town - The National Council of Provinces (NCOP) has passed the Electoral Amendment Bill, which will allow independent candidates to stand for election in the National Assembly and provincial legislatures.

The bill was, however, passed with amendments, including one providing for the establishment of an electoral reform consultation panel that must look into the country’s electoral system after the 2024 elections.

The bill is a sequel to a Constitutional Court judgment delivered in June 2020, which found that the Electoral Act was unconstitutional because it required candidates who wanted to stand for elections to be members of political parties.

Parliament was given until June 2022 to remedy the defect, but it asked for an extension, which ended on December 10.

The amended bill provides for requirements that must be met by persons who wish to be nominated as independent candidates and provides for objections to independent candidates, among other things.

The bill also provides for the appointment of agents by independent candidates and the return of a deposit to independent candidates in certain circumstances.

National Council of Provinces' Select Committee on Security chairperson, Shahidabibi Shaik, said there was consensus on the bill which proposed amendments to address the disparity between political party candidates and independent candidates.

She said the bill required independent candidates to obtain signatures for their candidature totalling 20% quota for that region in the previous elections when nominated.

Parties registered for elections and not represented will have to produce the same amount of signatures.

Shaik said the bill also provided for the establishment of the electoral reform consultation panel.

“The functions of the panel are to independently investigate, consult on, report on and make non-binding recommendations in respect of potential reforms of the electoral system for the election of the National Assembly and the election of the provincial legislatures, in respect of the elections to be held after the 2024 elections,” reads the bill.

Freedom Front Plus MP Stephanus Du Toit said they acknowledged the participation of independent candidates in the bill.

“We support free and fair elections, where equal playing ground must exist when independent candidates and political parties compete in elections,” Du Toit said.

EFF MP Mbali Dlamini said her party supported the bill as it was consistent with the Constitutional Court judgment.

DA MP Carin Visser said Parliament was given two years to fix defects in the Electoral Act, but the portfolio committee on home affairs embarked on a flawed public process in all nine provinces.

ANC MP China Dodovu said his party had supported the minimalist approach taken by the executive to effect the court judgment within the stipulated deadline.

Dodovu also said the bill provided for equality and parity for independent candidates and parties intending to contest the elections.

The bill will be referred to the National Assembly at its special sitting on Tuesday.

W9 TRAINING FOR POLITICAL PARTIES & COUNCILLORS 28 FEBRUARY 2023

INDEPENDENTS HAVE THEIR WORK CUT OUT

The lack of improvement in municipal outcomes over many years was an indictment of the entire local government accountability ecosystem, which failed to act and arrest the decline characterised by poor service delivery.

Nkosikhulule Nyembezi

Cape Town - Everyone must have had their moment when they concluded that things are broken in our current system of government and require a strong involvement of independent public representatives with no political party affiliation, and here is mine.

The lack of improvement in municipal outcomes over many years was an indictment of the entire local government accountability ecosystem, which failed to act and arrest the decline characterised by poor service delivery.

As South Africans welcome the adoption by the National Assembly on February 23 of the amendments to the Electoral Act that will allow independent candidates to contest national and provincial elections, I cannot shake the many stories of suffering communities.

President Cyril Ramaphosa needs to have signed the bill into law before the February 28 extended Constitutional Court deadline expires on Tuesday.

I can confirm that this is not perfect legislation, as someone who has written a doctoral thesis on the necessity of including independent candidates in our electoral system.

Still, it opens up space for a gradual and incremental enjoyment of political rights and expansion of representation of diverse political causes in our constitutional democracy.

Most importantly, it immediately challenges citizens to implement it, notwithstanding the need to refine some clauses over time.

Doing so will help change the generally sorry state of our country, where the Batho Pele principles, which should ensure a caring and responsive government, are so frayed and torn they are no longer there, and the damage is everywhere.

The political impact of all this damage should be obvious: disaster for the incumbent party that has presided over years of the hollowing out of the public realm, and a boost for independent candidates swelling the opposition base to replace it.

On one level, that is indeed what is happening.

Note the poor voter turnout over the years, the sustained loss of electoral support for the ANC, and the emergence of new political parties successfully contesting elections: proof that voters have looked at the condition of South Africa, the evidence of their daily lives, and lost faith in the corrupt ANC politicians in charge and the ineffective opposition parties unable to hold the ANC government accountable.

But that verdict contains foreboding for independent candidates, too.

Put crudely, the ANC has smashed up the country so badly, and South Africans may well instruct the new credible opposition with their votes to clean the mess up – thereby handing them an increasingly daunting, if not impossible, task.

Suddenly, those piles of unfulfilled election promises will not be simple reasons to support independent candidates: they will be the independent MPs’ duty to fix.

There is a big difference this time.

When the ANC consolidated its political power, the South African economy expanded, and the Treasury was flush with rising tax receipts and budget surpluses.

Now, the country is not merely at a low point in the economic cycle when you might assume an upturn is on the way, but is in a period of structural decline: economic growth projections are lower now than they have been for 25 years.

For example, at 0.9%, the Treasury’s GDP numbers are more optimistic than the Reserve Bank’s, whose growth estimate for 2023 is at a low 0.3% from 1.1% previously.

So independent candidates will come under immediate pressure to convince voters of what they plan to do practically to restore services long starved of cash.

Yet they will struggle to ensure the government spends what it needs to in critical sectors of the economy.

Unless elected leaders adopt a common goal, the depth of the hole independent candidates are likely to get into could swallow them up once they are there.

It will help potential independent candidates to understand the danger and prepare for solution-driven contributions to the election campaign debates meant to improve voter turnout and subsequent decisive government interventions underpinned by meaningful public participation.

This is why, when some were campaigning in various by-elections since 2015, their manifestos used the phrase “long term” several times, spelling out that they could not realise some of their ambitions over a mere five years in office.

In their journey to Parliament and provincial legislatures after 2024, they are already managing expectations, warning South Africans that the damage they see now is the tip of the iceberg.

It will take more than one term for independent candidates, elected in sufficient numbers, to ensure the administration corrects it successfully.

Many citizens will say these are necessary problems. If the current ANC mess ensures an opposition victory spiced up with independent public representatives, they can live with the challenge of the clean-up job to come.

But it may not be quite as simple as that because no win is guaranteed when a large number of the voting population is sceptical, even cynical, about whether the politics of coalition government works.

The appalling behaviour of opposition political parties in municipal coalition governments across the country has reinforced that mood in recent years.

Its impact extends beyond hung municipalities governed by unstable coalitions, and it affects, however unfairly, politics as a whole.

The toxic combination of the conduct and the record of several political parties represented in legislative bodies, from which many independent candidates are likely to emerge, has left people doubting the political parties’ ability or willingness to improve their lives.

That hurts public confidence in many potential independent candidates who believe in and heavily rely on an active, interventionist state to harness independent voices.

In that context, making election promises that are bigger or bolder, as some advocate, might hardly be a solution for winning sizeable electoral support.

It would only expose to voters how disconnected some independent candidates are from the reality of policy, legislation, and regulation implementation.

As a result, all independent candidates’ first task is to make a case for the efficacy and integrity of plurality politics, where all public representatives work harmoniously to better the lives of all citizens.

The aim is to break through the cynicism and prove that politicians who have earned public trust can get things done.

This is the paradox of our current politics: what hurts the ANC helps, but also hurts, independent candidates, and that makes independent candidates’ win more certain in most parts of the country.

More sobering still: when victory comes, the new government will be staring into a hole so deep that many people will doubt the country can ever dig itself out in the first five years of implementing these electoral reforms.

Nyembezi is a researcher, policy analyst and human rights activist

W7 INDEPENDENT CANDIDATES SOUTH AFRICA 13 FEBRUARY 2023

NEW STATE OF DISASTER WON'T DELAY 2024 ELECTIONS - IEC

 It will not even come close to us considering moving the election

The state of disaster President Cyril Ramaphosa imposed as a result of South Africa's energy crisis, will not delay the 2024 elections, according to Electoral Commission of South Africa (IEC) chairperson Mosotho Moepya.

Moepya was addressing a meeting of the South African National Editors' Forum (Sanef) when he was asked about the impact the state of disaster would have on the IEC.

The state of disaster began with immediate effect after the president announced it in his State of the Nation Address.

"The state of disaster will enable us to provide practical measures that we need to take to support businesses in the food production, storage and retail supply chain, including for the rollout of generators, solar panels and uninterrupted power supply."

The president said it would enable the government to exempt critical infrastructure, such as hospitals and water treatment plants, from load shedding.

Moepya hasn't seen the gazetted declaration of the state of disaster yet, but he said he was sure they would look at the possible impact in the coming week.

However, it could have an impact on the IEC's work. For instance, if there is load shedding at night, it could affect the time it takes to count the votes.

The coming national and provincial elections, which are between 15 and 18 months away, will also be the first in which independent candidates can contest.

It follows a 11 June 2020 Constitutional Court order, which declared the Electoral Act unconstitutional "to the extent that it requires that adult citizens may be elected to the National Assembly and provincial legislatures only through their membership of political parties".

The Constitutional Court suspended the declaration of unconstitutionality for "24 months to afford Parliament an opportunity to remedy the defect giving rise to the unconstitutionality".

This means the initial deadline to pass the legislation was 10 June 2022. Twice, Parliament had to approach the apex court for an extension. The Bill has to be enacted by the end of the month. 

On Friday, the Portfolio Committee on Home Affairs finalised its work on the Bill, and it will recommend to the National Assembly that it should be adopted.

Moepya said the Constitutional Court had ruled and that its decision was final, but added that there were some challenges. One of these is that the Constitution's provisions on the funding of political parties don't speak to independent candidates.

The new legislation would mean that in the 2024 elections, voters will be handed three ballot papers instead of the customary two. The National Assembly is made up of 400 seats, of which 200 are filled from national party lists and 200 from the nine provinces' or regional lists.

The independent candidates are only allowed to stand on the regional lists. The new ballot will thus be a regional ballot. Previously, the same ballot was used for the national and regional lists.

Moepya said each province's regional ballot would be different. This will pose some logistical challenges.

He remarked that he had never seen so much interest, so much controversy, and so much rigour and debate go into a Bill.

"This must be welcomed," he said.

The Bill that is expected to be adopted will contain a provision that a body must be established to review the electoral system.

This followed much pressure from civil society, out of discontent with the nature of the changes the legislation would make to the electoral system, with the general feeling that it doesn't go far enough.

Several civil society organisations have been advocating for an electoral system that, at least in part, provides for constituencies.

Moepya said further legislation would be required to allow the demarcation of national and provincial constituencies, a process which itself could take up to five years.

W6 ONLINE INDEPENDENT CANDIDATE CAMPAIGN COURSE 9 FEBRUARY 2023

ELECTORAL AMENDMENT BILL: EFF OBJECTS AS SIGNATURE QUOTA REDUCED

Both independent candidates and parties have to produce the same amount of signatures.

Parliament’s Portfolio Committee on Home Affairs has resolved to lower signature requirement quota in the Electoral Amendment Bill.

Following deliberations on Tuesday morning, the committee decided to reduce the number of signatures required by independent candidates and political parties to contest an election.

The committee last week was briefed by the Department of Home Affairs’ lawyers on the signature requirement.

Advocate Mitchell de Beer suggested that the quota be lowered to 15%, as it would be a barrier for independent candidates to contest elections if kept at 20%.

Before Tuesday’s decision to reduce the quota, the bill had required independent candidates to produce signatures and identity numbers of voters supporting their candidature totaling 20% of the quota for a seat in the previous election.

Both independent candidates and parties – who are registered but not represented in the National Assembly (regions) or provincial legislatures – have to produce the same amount of signatures.

While the ANC, Democratic Alliance (DA) and Inkatha Freedom Party (IFP) supported the reduction to 15%, the Economic Freedom Fighters (EFF) opposed this.

“Us lowering the threshold to 15% is not going to satisfy civil society organisations. Our view as the EFF has always been that the threshold must be high enough to discourage any chance takers from participating as an independent candidate,” EFF MP Thapelo Mogale said.

The committee on Tuesday also resolved that Home Affairs Minister Aaron Motsoaledi must appoint a panel of experts to investigate comprehensive electoral reform rather than Parliament.

The EFF and IFP wanted to responsibility of the electoral reform panel lie with Parliament in consultation with the Independent Electoral Commission (IEC).

“I think it will be proper to allow Parliament to be included in he process,” Mogale said, while IFP MP Liezl van der Merwe suggested that the panel report its findings to an ad hoc committee.

The bill has included Clause 23, proposed by Department of Home Affairs, as a provision.

The clause will see the establishment of a panel of independent experts to look into the reform of South Africa’s electoral system after the 2024 elections.

The panel, which will have to be appointed within four months of the enactment of the bill, will be appointed by Motsoaledi.

It will be tasked to investigate whether reforms are necessary to the electoral system; the possible options for reforms; and the potential advantages and disadvantages for each option identified, according to the clause.

The panel must also submit a full report, with its findings, to the minister within 12 months of the date of the elections.

Once the report is submitted, the minister must immediately table it before Parliament for its consideration and make the document available to the public.

It will be up to Parliament to decide on what, if any, electoral reforms should be adopted on the basis of the panel’s recommendations. 

The committee, which has to adopt the bill with the latest changes before it heads back to the National Assembly, is expected to meet on Tuesday.

The draft legislation has to be voted on by MPs in the National Assembly and will then head to President Cyril Ramaphosa for approval.

The process has to be completed by 28 February as per the ruling of the Constitutional Court (ConCourt).

W6 INDEPENDENT CANDIDATE TRAINING 8 FEBRUARY 2023

SHAPE YOUR FURTURE AT THE POLLS, IRR URGES VOTERS

Getting South Africans excited about voting in next year’s crucial national election is one of the key objectives of a new #PledgeToVote initiative launched by the Institute of Race Relations (IRR)

Announcing the initiative, the IRR points out in a statement that South Africa’s most recent election, the 2021 Local Government Election, ‘signalled a warning about the condition of our democracy in the continuing decline of voter turnout: just 12 million people – only 46% of registered voters – cast their ballot’.

The new initiative is aimed at countering this trend and strengthening South Africa’s democracy by encouraging citizens to participate in 2024 Election.

In the face of livelihood-threatening load-shedding, growing dissatisfaction over poor service delivery, and sparse job opportunities, the need for citizens to get involved in and excited about the country’s prospects has never been greater.

Says #PledgeToVote Campaign Manager Alex Weiss: ‘We’ve created a platform to get South Africans excited about voting and encourage one another to participate in deciding the future of South Africa. We want people to commit to the simple act of voting and keep them engaged all the way to the ballot box.’

The IRR points out that, while the ANC has dominated every election since 1994, polling indicates that it will likely get less than 50% percent of the vote in 2024.

‘This will tilt the country towards more competitive politics, making the next ballot the most exciting the country has seen in 30 years.’

The #PledgeToVote campaign aims at getting South Africans ‘to take the first vital step in getting involved in their democracy, by simply voting –the most valuable and nonviolent means of public participation and representation in politics’.

7 FEBRUARY 2023

ASSOCIATION FOR INDEPENDENT COUNCILLORS AND CANDIDATES LAUNCHED

Body aims to train independent councillors on matters of finance and the political system

An association for independent councillors and those who plan to stand in the 2024 national and provincial elections as independent candidates was launched at the weekend.

The brainchild of founder and nonexecutive director Michael Louis, the Cape Town headquartered Independent Candidates’ Association (ICA) will educate independent councillors about matters of finance, the political system and the laws governing it, and in the skills required to be an effective councillor. Membership will not be open to councillors belonging to political parties but will include civil society and other affiliated organisations.

In 2021’s local government elections 61 independent ward candidates were elected to municipal councils, says Louis. Together with those elected by civic organisations on both the ward and proportional lists the total was at least 122 councillors countrywide, who Louis says represent about 752,000 voters. Many of these councillors were elected in small rural towns and do not have any experience in local government, a lack which ICA plans to fill. It will run courses teaching best practice to professionalize independent councillors and ensure they are accountable, responsible leaders.

What also emerged from the local government elections was that independent, or civic-based, councillors are the kingmakers in hung councils and join other parties to form coalitions.

“These independent candidates definitely need to be governed, they definitely need training and they definitely need best practices. If there is no code of conduct or any way to discipline these independent candidates we are going to have big problems,” Louis said. The ICA has affiliate bodies overseas that will help with training.

Louis, a former African Christian Democratic Party (ACDP) MP nearly two decades ago was the brains behind the nonpartisan, people’s organization the New Nation Movement, which was successful in its application to the Constitutional Court to get SA’s electoral law changed to accommodate independent candidates at national and provincial level to ensure greater accountability to the electorate. The court ruled that the Electoral Act was unconstitutional insofar as it limited election to political office to members of political parties.

Congress of the People leader Mosiuoa Lekota has tabled a private members’ bill, the draft Electoral Laws Amendment Bill, in parliament to allow for the election of independent candidates. The bill is now under the scrutiny of parliament’s home affairs committee. The department of home affairs has also produced an Electoral Amendment Bill and home affairs minister Aaron Motsoaledi is scheduled to brief the committee on Tuesday about it as well as comment on Lekota’s bill.

The ICA, which has been six months in the making, will operate in a similar manner to the law society and health professionals council. Members will pay a fee but the organization will rely on donations and sponsorships for its financing too, Louis said. Its legal advisers will institute legal action on behalf of or against independent councillors where necessary, for example against ill-performing councillors or those behaving with impropriety even if they are not members of the ICA.

The ICA charter and constitution were formally adopted at the launch meeting on Saturday. In time an MD will be appointed. The New Nation Movement is not yet a member of ICA though Louis hopes it will become one.

The ICA will exist alongside the SA Local Government Association (Salga) which was created by the constitution to represent the interests of local government as a sphere of government and exercises oversight over it. After every municipal election Salga holds a nationwide councillor induction programme so that councillors understand their leadership roles.

W6 INDEPENDENT CANDIDATE CAMPAIGN COURSE 5 FEBRUARY 2023

DELAYS WITH ELECTORAL AMENDMENT BILL A THREAT TO IEC's MANDATE

The Constitutional Court has given an order granting parliament a further extension to finalise its process to pass and adopt the Electoral Amendment Bill. This is the second extension after parliament missed its initial deadline of June 10, 2022, which was set back in June 2020 by the Constitutional Court.


Parliament was then given an extension until 10 December, 2022 to finalize the process, which it again missed. So, the Concourt has now given parliament until February 28, 2023. The Electoral Amendment Bill amends the electoral laws to include independent candidates to contest elections in the National Assembly and provincial legislatures. This follows the Concourt having declared the Electoral Act unconstitutional because it does not allow independent candidates to contest at provincial and national levels. Parliament was ordered to remedy the defect within 24 months. More than 30 months into the process of fixing the legislation, parliament is clearly running out of time to amend the Electoral Act and so will the Electoral Commission of South Africa (IEC), eventually, to implement the changes. While the IEC has said that the extension will not necessarily hamper its preparations for the 2024 national and provincial elections, any further delays will become a threat to the preparation work.

The IEC needs time to draw up an election timetable, develop new systems for the inclusion of independent candidates and conduct public and voter education on the new electoral system. This will disrupt the already constrained preparation process towards the elections and is likely to compromise the credibility of the elections.

There are still fundamental flaws in the Bill that, if adopted without being remedied, would likely not pass constitutional muster and risks legal action and therefore further delays. On the other hand, any major changes to the current Bill, which are still likely to be implemented because the Bill is flawed, might compromise the IEC’s planning process. There still needs to be remedying of the major flaws of the Bill to ensure that the 2024 national and provincial elections are credible. So, there are no easy solutions for the IEC.

Therefore, this means that the IEC’s preparation is solely based on the premise that there are no more major changes to the Bill leading up to its finalisation. It is also likely based on the assumption that major flaws are disregarded for the purpose of the Bill being finalised. This puts a risk to the integrity of the elections and easily puts the Concourt in a position where it must decide whether to suspend major changes to the Bill in order to allow the IEC enough time to prepare for the elections. This is dangerous and can plunge South Africa into a constitutional crisis.

The IEC initially advised that it would need at least 18 months for preparations on a finalised electoral system, which makes the deadline of the previous extension the ‘hardline’ in terms of careful planning for 2024. This is because the Bill has major implications on the planning process of the IEC, especially with regards to the development of new election results and seat allocation applications and a new candidate nomination system.

It also has implications on the configuration of the ballot paper; the proposed system will increase the number of ballots. Furthermore, the Bill will have implications on public and voter education because any new electoral system will require extensive public education.

So, any preparation happening post the deadline of the first extension will potentially jeopardise the integrity of the elections. Moreover, the IEC is facing budget cuts of almost R800 million (before taking inflation into account) over the next three years. The specific areas that will be impacted by the budget cuts include cancellation of the second weekend for voter registration for the 2024 national elections. Voter education and outreach will not be adequately funded, and staff expansion cannot happen. The implementation of the Electoral Amendment Act will also be compromised.

If anything, the delays to the finalisation of the Electoral Amendment Bill are extremely threatening, especially if there are any structural changes to the Bill leading up to its adoption. There are major implications for implementing the Bill for the IEC ahead of 2024, from changing systems to embarking on voter and public education. All of this is happening in the context of delays in the process which have hamstrung the planning process of the elections. Moreover, the IEC is experiencing budget cuts, which will impact the implementation of the Electoral Amendment Act and the ability of the IEC to fulfil its mandate.

The IEC must ensure that the elections are credible. The IEC is mandated by the Constitution to manage free and fair elections and to safeguard our democracy. Such delays will further undermine the IEC’s ability to carry out its mandate and is a threat to our democracy. The further delays are a long-term threat towards efforts to renew our electoral system and sustain our democracy.

W4 INDEPENDENT CANDIDATE COURSE january 2023

COURT HAD NO OTHER OPTION BUT TO GRANT ANOTHER EXTENSION ON ELECTORAL BILL


The Organization Undoing Tax Abuse (OUTA) says it takes note of the extension of the deadline for amendments to the Electoral Amendment Bill that was granted to Parliament on Friday, 20 January 2023 by the Constitutional Court. Parliament requested the extension on 6 December, four days before the extended deadline for amendments.

Parliament had twice failed to meet a Concourt-imposed deadline for amending the Electoral Act. The bill seeks to make provisions for independent candidates to participate in national and provincial elections, and stems from the Constitutional Court’s ruling in June 2020 that the Electoral Act was constitutionally invalid insofar as it makes it impossible for candidates to stand for political office without being members of political parties. Parliament was given until 10 June 2022 to rectify the constitutional defects in the act, but failed to do so.

OUTA was a friend of the court in this matter, brought by the New Nation Movement and a group of independent candidates, since it supports amendments to the current electoral system that strengthens the voters’ ability to hold politicians to account. “We also support calls for independent candidates to participate in elections,” says Rachel Fischer, OUTA’s Parliamentary Engagement and Research Manager.

Fischer says OUTA accepts this second deadline extension as a matter of necessity. “Concourt had no other option since Parliament forced their hand in December. But it must be noted that this whole absurd situation and the two deadline extensions could have been avoided had Parliament prioritised its duties to ensure broad electoral reform by June 2022, as per the Constitutional Court’s original instruction. As so often happens in South Africa, a golden opportunity for reform has been lost through political interference. Now we find ourselves at an impasse that is casting a shadow over the 2024 national elections.”

Previously, OUTA objected to what it called “MPs' last minute rush” to push the bill through, saying that it torpedoed public participation. “Parliament’s initial public hearings on the bill were more of a public relations exercise than responsible action in the public interest,” says Advocate Stefanie Fick, Executive Director of OUTA's Accountability Division. A big concern was that the public were not given two bills to comment on. Instead, the Electoral Amendment Bill was presented as the only option. “There has been a focus on whether or not independent candidates should be allowed, when this matter is not up for debate as the Concourt has already ruled that they must be allowed,” says Fischer.

Parliament only convenes for the new year today (24 January) with the new deadline for public commentary on the bill set for 27 January. “This gives the National Assembly a mere four weeks to process any amendments in time for President Ramaphosa to sign off on the bill by the deadline,” Fischer explains.

She adds that, according to the Electoral Commission (IEC), 28 February was the absolute last date for dealing with amendments to the bill in order to ensure sufficient time for preparation for next year’s elections.

But even if public commentary and amendments are taken into consideration and accepted, Fischer says the bill in its current form is still problematic. “Should the President sign off on it by end of February 2023, there are many grounds on which to challenge it,” she says.

OUTA is submitting commentary yet again during this final opportunity for public participation. “We will closely monitor the process over the next month,” says Fischer.

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12 december 2022

CONCOURT PRESENTED WITH EARLY CHALLENGE TO ELECTORAL AMENDMENT BILL

AFTER GRANTING A FURTHER EXTENSION TO THE STATE TO RECTIFY THE UNCONSTITUTIONALITY OF THE ELECTORAL ACT

The apex court found the act to be invalid – as far back as June 2020 – in that it limits participation in provincial and national elections to candidates representing political parties. Image: Moneyweb

7 december 2022

ICA TO CHALLENGE ELECTORAL AMENDMENT BILL AFTER IT’S BEEN SIGNED INTO LAW

THE INDEPENDENT CANDIDATE ASSOCIATIONS FOUNDER, MICHEAL LOUIS, SAID THAT THEY HAD VARIOUS ISSUES WITH THE BILL IN ITS CURRENT FORM

The Independent Candidate Association (ICA) of South Africa is planning to head to court to challenge the Electoral Amendment Bill after it’s been signed into law.

In June 2020, the Constitutional Court declared the Electoral Act unconstitutional insofar as it makes it impossible for independent candidates to stand for national and political office without being members of political parties and gave Parliament 24 months to amend the act.

The deadline was subsequently extended to this month and now Parliament has approached the Constitutional Court in a bid to extend it again this time to February next year.

The Independent Candidate Associations founder, Michael Louis, said that they had various issues with the bill in its current form.

"The first thing is the in-general proportionality, the second is the whole thing about signatures and barriers … for a political party to have invested in the past, a political party only needed 1,000 signatures. The new bill says independent candidates that is wanting to register must get between 14,000 and 19,000."

He also said that the bill’s provisions for filling vacancies were unfair.

6 december 2022

CONCORT CHALLENGE LOOMS OVER ELECTORAL AMENDMENT BILL

THE INDEPENDENT CANDIDATE ASSOCIATION (ICA) HAS ANNOUNCED IT IS DRAFTING LEGAL PAPERS AND WILL BE TAKING ITS FIGHT OVER THE 'FLAWED ELECTORAL AMENDMENT BILL' TO THE CONSTITUTIONAL COURT.

Founder of the ICA, Dr Michael Louis, writes in the opinion piece below that: “…parallel to this process ICA will be drafting an application for direct access [to the ConCourt], and we already have five other civil society organisations receiving the necessary mandates to act as co-applicants. This process will take a minimum of six months.” The Bill of Rights – which gives any individual the right to stand for public office – is at odds with current legislation stating anyone contesting elections must belong to a political party. In mid-2020, the ConCourt ordered Parliament to remedy the situation within 24 months, but that deadline expired in June 2022. An extension until 10 December this year was granted. But Parliament dillydallied and has had to request a further three months extension to the deadline. Louis says they are just waiting for President Cyril Ramaphosa to sign the Electoral Amendment Bill into law before they launch their court action with a view to having judgment in the matter no earlier than October next year. That’s a mere couple of months before the national elections touted for mid-2024. – Michael Appel

By Dr Michael Louis*

There is no doubt that our collective concern for the state of our democracy is at an all time high. We have a president who has been found to have possibly violated his oath of office and other laws of the land. We have no credible alternatives within the governing party, and all the while the problems of the nation continue to worsen.

Reflecting on the explosive events of the first week of December 2022, I was again reminded of the importance of the vote as a safeguard of our democracy. While every citizen might not own their own house, not have access to good education, or not have clean water, but what they do own is the power of the vote, and that vote must be dignified by being given full meaning and effect.

Citizens do not vote for the mere sake of voting; they do so to provide a mandate to the right people to become lawmakers and to hold the executive to account.

However, our system has been deemed to have major flaws which limit the power of citizens to effect that accountability. Our political system is broken and the evidence of that can be seen in how our Parliament failed to hold Jacob Zuma to account for state capture and the Nkandla scandal. This is because, within a closed list party system, the loyalty of members of Parliament has been to those who deployed them, and not to the people of South Africa and the oath they swore as members of Parliament. This was even pointed out by Chief Justice Raymond Zondo when he was delivering the final state capture report.

The Constitutional Court recognised in 2020 that the electoral act was unconstitutional and ordered that it be amended, in the two and half years since then there have been many delays primarily because Parliament wants to retain the old political system.

For the past five years, I have been part of leading those who have been calling for a new electoral system. This is not a new call, but it is one that has been promoted and supported by many statutory commissions as far back as 2003 with the Van Zyl Slabbert report. We are now approaching 20 years of advocacy for electoral reform to fully equip our democracy with the tools for accountability, namely constituency-based voting for our national and provincial elections and the ability of independents to run for seats in parliament and provincial assemblies on an equal footing with political parties.

Transitional arrangement

Our electoral act was always a transitional arrangement and top ANC leaders like Nelson Mandela acknowledged this. The political parties abandoned the pursuit of reform, but impressively civil society organisations took up the fight and are seeing it through to the end.

Civil society organisations have come together in one voice and demonstrated their disapproval of the current electoral act that is currently being considered in Parliament. Our disapproval is based both on issues of procedure and substantive law. The draft bill process was designed to limit public participation, and to filibuster the Constitutional Court judgment and ultimately the draft bill does not reflect the aspirations of the Freedom Charter, namely that “every man and every woman will have the right to stand in public office.”

With a 30 months legislative process now completed in Parliament, there are further delays on the road to electoral reform. There has been another application for an extension made to the Constitutional Court. This time the request is for another three months.

We are convinced as civil society that “die koeel is deur die kerk“. We started the legal process in 2017 with a heart for the people of South Africa to have the ability to elect our best 400 national parliamentarians and best legislative representatives in the provinces. Not only by virtue of political parties. Political parties will always have an important role to play in our democracy, and our crusade is not in opposition to political parties. However, we must acknowledge that the representatives of political parties in Parliament have disappointed us. Without competition and without accountability mechanisms which work, our Parliament will remain a fiasco and a circus costing our people billions.

While political parties are essential to democracy, they have acted in their own interests in this electoral reform process. They have yet to consider the submissions of civil society organisations and taken us seriously. We understand this is a complicated bill. It seems that many of their colleagues have no understanding of the bill. This is something that was pointed out by President Thabo Mbeki and corroborated by Valli Moosa. We should all be worried about this because our parliamentarians are playing a very dangerous game by playing around with one of the most fundamental human rights, the right to vote.

This is also not a time to play political opportunism. That, too is a dangerous game. To this end, I was disturbed to hear the DA publishing their intention to submit a motion to Parliament to ask the Speaker in terms of Section 50 to dissolve Parliament and immediately call for another election. The DA knows full well that a new electoral bill has still a long way to go before the president would sign it into an Act. We cannot go into another election before this issue is resolved.

Flawed

Furthermore, the Independent Candidate Association (ICA) has formally decided that we will challenge the draft Electoral Amendment Bill now that both houses of Parliament have considered and passed their suggested amendments. We remain convinced that the bill is flawed and even if it is submitted to another round of public participation, the flaws will remain. This is because public participation is limited to the additional amendments and not the full draft. We have formally given notice to our legal attorneys, and have instructed our legal counsel to start preparing papers to challenge the bill once the President signs it into law . This was never our preferred option, but we cannot in good conscience sit by and watch a twenty-year journey for real electoral reform be diluted in the jug of political opportunism.

We are well aware that legal papers will only be able to be served once the President signs it into law. Civil society remains of the opinion that the President at this time of impasse, is not fit to consider and apply his mind to the constitutionality of the Electoral Amendment Bill and that he refers it to the Constitutional Court to determine constitutionality.

However, parallel to this process ICA will be drafting an application for direct access, and we already have five other civil society organisations receiving the necessary mandates to act as co-applicants. This process will take a minimum of six months, and with the expected date for Parliament to pass the bill in March , we expect judgment to be no earlier than October 2023. With an extended election time according to the Constitution the latest we could have a election is in August 2024.

It is clear that while the political parties fight, a constitutional crisis is in the making, our focus remains on electoral justice. Justice remains the first virtue of society. We remain committed to the truth , to do the right thing because it is right. Our country and people are in need of order, democracy, rule of law and human rights.

Now it is time for courageous leadership. However, the greatest leadership is not about conflict and opposition. The root of the word courage is “cor-” the latin word for “heart’ . Heart for people, heart for unity, heart for our nation, heart for providing a home, electricity, education, clean water, and that our families live in a crime-free society. I have always believed that the key to change in our country is the electoral act that will provide the legislative framework for civil society to directly nominate its leaders.

The fight for our electoral system is larger than ourselves. It’s about survival of our country, the survival of our families, survival of our next generation.

3 december 2022

SOUTH AFRICANS DESERVE AN EARLY ELECTION - IRR

VOTE FOR THE PEOPLE'S RIGHT TO DECIDE WHAT COMES NEXT, VIA AN EARLY ELECTION; THIS IS WAHT THE INSTITUTE OF RACE RELATIONS (IRR) BELIEVES PARLIAMENT MUST NOW DO IN LIGHT OF THE MOUNTING CRISIS OVER CYRIL RAMAPHOSA'S PRECIDENCY

The much-needed early 2023 national election is both lawful and in the best interests of all parties seeking a democratic mandate in the wake of upheaval,’ the Institute said in a statement.

‘Opposition parties should embrace the opportunity to expose themselves to the electorate’s reckoning. Likewise, ANC MPs who wish to govern under a new leader, or under the newly exposed Ramaphosa, will find a new mandate indispensable too.’

The IRR noted that, over a month ago IRR Project Manager Terence Corrigan proposed that an early election, in terms of Section 50 of the Constitution, ‘should be triggered to halt national “regression”’.

‘This call has now been tabled by the leader of the official opposition, John Steenhuisen, which is a significant step towards South African citizens weighing in on the national crisis.’

The IRR said: ‘South Africans have had the worst average negative response to the question “Do you think your country is going in the right direction, or the wrong direction?” of any country surveyed since President Cyril Ramaphosa’s election, according to data from international pollster Ipsos.

‘The Parliamentary Independent Panel Report into allegations of illegal activity and serious misconduct by President Ramaphosa has further eroded confidence in his “new dawn”. Without confidence, government lacks legitimacy. Without legitimacy there will be no stability or growth.’

Section 50(1)(a) of the Constitution ‘articulates the National Assembly’s power to adopt a resolution to dissolve itself, triggering a national election, precisely to restore legitimacy in the wake of this kind of leadership catastrophe’.

‘Fresh elections can be triggered by a simple majority of the National Assembly, but may only take place once three years have elapsed since the last election, which has already happened. All Parliament has to do is vote for the people’s right to decide what comes next.’

The IRR argued that the alternative to a ‘much-needed early 2023 national election’ was ‘to lock ordinary people out of the leadership contest rendering it nothing more than palace intrigue.’

‘South Africa suffers the highest recorded unemployment rate worldwide, declining investment, a weakening currency, load-shedding, increasing child hunger, and per capita productivity shrinkage since 2010. Ordinary citizens are suffering and must have the chance to answer the leadership question raised by the finding of Ramaphosa’s prima facie criminality by a Parliamentary Panel, the Western Cape High Court’s finding that he obstructed justice, and the nationwide evidence of a flailing state.

‘Who occupies the Union Buildings matters primarily because of what comes out of the Union Buildings that impacts South Africans, starting with the law of the land, including laws that kill jobs.

‘For example, the IRR’s legal team petitioned the President to veto the Employment Equity Amendment Bill (EEB), which aims to grant Minister Thulas Nxesi the power to impose Dis-Chem-style racial moratoria over 85% of the private workforce. The IRR recorded over half a dozen unconstitutional defects in that Bill. The Presidency responded that the Institute’s “objection to the Bill is noted and will be considered before the President takes a final decision on the Bill”.

‘Section 79 of the Constitution effectively says the President “must” block the EEB, whoever the President is. But there is now a direct risk that the President might violate his or her duty by signing Minister Nxesi’s “more aggressive” race law into force to try to score ideological points amidst an ANC internal struggle, regardless of how this kills jobs.’

Said Gabriel Crouse, Head of Campaigns: ‘At the petrol station, at the garage coffee stand, in the taxi this morning, I kept hearing the same thing: ‘I don’t know what is going to happen, I’m afraid, it’s going from bad to worse’. South Africans should be in control of what comes next. Give us back our vote.’

2 december 2022

RAMAPHOSA CRISIS: ARCHBISHOP MAKGOBA CALLS FOR 'GOVERNMENT OF NATIONAL UNITY UNDER A RESPECTED LEADER’

RAMAPHOSA CRISIS: ARCHBISHOP MAKGOBA CALLS FOR 'GOVERNMENT OF NATIONAL UNITY UNDER A RESPECTED LEADER’

Anglican Archbishop Thabo Makgoba says the country is facing a crisis and the governing party appears to be in meltdown.

Makgoba was reacting to the controversy around President Cyril Ramaphosa who is under immense pressure following the release of the report by an independent panel, which made damning findings against him in relation to the theft of $580 000 (R10 million) from his game farm, Phala Phala, in Limpopo.

Makgoba said:

It is correct that no one should be above the law, but to pass final judgement on a person based on what is in effect a board of preliminary investigation, which has not made a final determination of the facts, could lead to lawlessness in South Africa.

The ANC's national executive committee is meeting to discuss Ramaphosa's fate following the release of the independent panel’s report.

According to Makgoba, the vast majority of South Africans wanted to see political leaders deal with problems like load shedding and joblessness urgently.

Makgoba also said the nation was “probably getting impatient” with a governing party at war with itself.

“If the president loses the political support of his party before a final determination of his conduct is made, I call for the establishment of a government of national unity under a respected elder to stabilise the country until the next election. And during the next year we need to hold an economic Codesa to address the real crisis facing the country, which is the scandalous gap between those who benefit from intergenerational wealth and those who are locked out of the economy,” Makgoba said.

The Section 89 independent panel was led by former Chief Justice Sandile Ngcobo, and was appointed by Speaker Nosiviwe Mapisa-Nqakula.

The panel found that Ramaphosa has an impeachable case to answer on the Phala Phala scandal.

Ramaphosa failed to convince the panel that he had acted in accordance with the law and the Constitution after the burglary, and could face an impeachment investigation by lawmakers.

The four charges include three instances in which Ramaphosa violated the Constitution for continuing to be engaged in paid work outside his duties as a member of the Cabinet and for acting inconsistently with his office by asking his head of security, Major-General Wally Rhoode, to investigate the matter.

MPs are expected to vote on Tuesday on whether or not to adopt the report.

Makgoba also said with the looming festive season, the focus should be to give voice to the “ordinary” people of the country.


12 NOVEMBER 2022

DON'T SIGN THE ELECTORAL LAW, IRR WARNS RAMAPHOSA

LISTEN TO THE DEMANDS OF CIVIL SOCIETY - DON'T SIGN THE ELECTORAL AMENDMENT BILL, , BUT RATHER SET IN TRAIN A PROCESS THAT CAN DELIVER A 'FAIR AND JUST ELECTORAL SYSTEM’

This is the message the Institute of Race Relations (IRR) has conveyed in a letter this week to President Cyril Ramaphosa.

In a statement, the IRR said it urged the president ‘not to sign the Electoral Amendment Bill if it is passed by the National Council of Provinces (NCOP) in its current form’.

Said Hermann Pretorius, IRR director of communications: ‘South Africa risks sleepwalking into a democratic and constitutional crisis. If the right decisions are not now made to go back to basics and construct a fair and credible electoral system that meets the constitutional requirements, the consequences for our democracy will be dire.

‘Imagine thousands of voters finding out only after they’d voted that their votes were discarded or given to a party they did not actually vote for. This is the stuff of election nightmares – the stuff of untrustworthy election results, unrest, and the populist denial of democratic outcomes.’

Pretorius added: ‘We have seen the consequences of elections where the outcome is susceptible to doubt. We have seen the damage done to politics and public trust when democracy itself loses the respect of citizens.

‘If I could speak directly to the President, I’d say to him: «President Ramaphosa, don’t let your legacy be the decimation of the constitutional democracy you are rightly proud of having played a role in bringing about – show leadership and insist that Parliament does its job on electoral reform properly. Don’t sign this Bill. Send it back to Parliament and listen to the demands of civil society to see a fair and just electoral system put in place. If we rush now to have an inadequate system in place for the 2024 elections, those elections will be chaotic. Mr. President, you can ensure that electoral reform is done properly. It’s time to go back to basics and look beyond the immediate politics.”’

According to The Road to Electoral Reform, a report by highly respected independent elections analyst Mike Atkins, commissioned by the IRR and published this week, the current Bill fails in significant respects to meet the validity criteria set out in the Constitution, and the judgment of the Constitutional Court in New Nation Movement NPC and Others v President of the Republic of South Africa and Others.

The IRR points out that the June 2020 judgment on the New Nation case ‘created the incentive for Parliament to amend the electoral system by which Parliament is elected, the Court finding that it is unconstitutional for persons independent of political parties to be ineligible for election’.

Parliament was given until June 2022 to remedy this situation.

‘However, as a result of Parliament essentially abrogating its responsibility in this matter to the Minister of Home Affairs, this deadline was not heeded. Missing the deadline set by the Constitutional Court has led to a situation in which the Electoral Amendment Bill was hastily drawn up and, in short order, put out for public comment, and passed by the National Assembly at some speed.’

The Bill is currently before the NCOP, the period for public comment on it having closed on 9 November.

The IRR said its submission opposing the Bill in its current form ‘(echoes) the warning in The Road to Electoral Reform that a rushed legislative process risks the constitutional validity of future elections, and (urges) that the current draft law be scrapped, and that a constructive and deliberative process be launched to ensure the integrity of South Africa’s democracy.’

In its letter to the President, the IRR writes:

“In terms of section 79(1) of the Constitution the President of the Republic of South Africa has the power to refer a bill back to the National Assembly for reconsideration should the President have reservations regarding the Bill. The IRR submits that the President should seriously and thoughtfully consider the Bill and refer the Bill back to the National Assembly in order for the glaring unconstitutional provisions and scope of the Bill to be reconsidered.

“Should the National Assembly not adequately address the concerns in the Bill, the IRR submits that the President should exercise his power in terms of section 79(4)(b) of the Constitution and refer the Bill to the Constitutional Court for a decision on its constitutionality. The IRR submits that it would be proper and prudent for the Constitutional Court to first determine the constitutionality of the Bill prior to adoption in light of the fact that the Bill stems from the Constitutional Court judgement in New Nation Movement NPC and Others v President of the Republic of South Africa and Others.

“In the interim the IRR proposes that the 2024 national elections be conducted in terms of the current and existing electoral framework and that the Bill first be corrected and the issues addressed prior to the adoption thereof.”

The NCOP is expected to vote on the Electoral Amendment Bill within the next few weeks, after which the Bill will go to the President for his assent.

The IRR warns that if the President signs the Bill, ‘it is likely to face immediate constitutional and legal challenges’.

Pretorius said: ‘The IRR will play its part in defending the integrity of our constitutional democracy. If that means going to court, so be it.’

21 october 2022

NATIONAL ASSEMBLY APPROVES ELECTORAL AMENDMENT BILL

THE NATIONAL ASSEMBLY (NA) ON THURSDAY APPROVED THE ELECTORAL AMENDMENT BILL AT ITS HYBRID PLENARY SITTING ON THURSDAY.

The Bill was warranted by the Constitutional Court judgment in the New Nation Movement NPC and Others vs President of the Republic of South Africa and Others case in June 2020, which ruled that the Electoral Act of 1998 was unconstitutional, to the extent that it requires that adult citizens may be elected to the National Assembly and Provincial Legislation only through their membership of political parties.

The Bill is mostly aimed at, amongst others, inserting certain definitions that are deemed consequential to the expansion of the Act to include independent candidates as contesters to elections in the National Assembly and provincial legislatures.

It seeks to provide for the nomination of independent candidates to contest elections in the National Assembly or provincial legislatures, and also provides for the requirements and qualifications that must be met by persons who wish to be registered as independent candidates.

The Electoral Amendment Bill was introduced to Parliament by the Home Affairs Minister on 10 January and published for public comment on 21 January 2022, with the closing date set for 21 February 2022.

20 october 2022

NATIONAL ASSEMBLY PASSES CONTROVERSIAL ELECTRORAL AMENDMENT BILL AMID PROTESTS FROM OPPOSITION PARTIES

THE BILL WILL INTRODUCE AN UNTESTED ELECTORAL SYSTEM ALLOWING INDEPENDENT CANDIDATES TO STAND FOR PARLIAMENT BUT IS SEEN AS A MISSED OPPORTUNITY TO ENSURE GREATER ACCOUNTABILITY

The National Assembly on Thursday voted by 232 votes to 98 to pass the electoral amendment bill that will allow individuals to stand for elected office as independents, but has been lamented by observers as a missed opportunity for thorough reform to enhance political accountability.

The bill was supported by the ruling ANC, as well as the Economic Freedom Fighters, the Pan Africanist Congress and the National Freedom Party after months of complaint from other opposition parties about how the manner in which vote allocation will happen is fraught and unfair.

Moreover, they believe it ultimately stands to benefit a ruling party in decline.

The Democratic Alliance (DA) did not support the measure, nor did the United Democratic Movement, the African Transformation Movement or the GOOD Party.

The bill was drafted because the constitutional court in New Nation Movement NPC and Others v President of the Republic and Others declared the current party list system unconstitutional in that it did not allow individuals or independent candidates to stand for election at a national or provincial level.

South Africa has operated under a proportional representation (PR) system for all of its democratic history. But the Constitution enshrines the right of every citizen to stand for elected office and there have been various calls since the 1994 elections for the country to move to some form of a constituency model.

The Van Zyl Slabbert Commission in a 2003 report recommended that South Africa adopt a mixed system in which MPs would be elected from multi-member constituencies, but this was ignored.

Chief Justice Raymond Zondo, in his capacity as chairman of the commission of inquiry into state capture, pointed to the ravages of the present system in that politicians failed to call out corruption because they were beholden to their parties and not their voters. He was speaking in particular to the ANC, which had shown scant appetite for reform.

In the New Nation Movement judgment, Justice Mbuyiseli Madlanga dismissed the speaker’s argument that electoral reform was the preserve of parliament and the subject of an ongoing process. There was no process, he wrote, “and we do not know if there will be one”, before ordering that the law be amended.

Madlanga gave the legislature 24 months to effect the amendment, but the deadline was extended at parliament’s request.

A ministerial task team assembled by Home Affairs Minister Aaron Motsoaledi initially mooted a hybrid system along the lines proposed by Van Zyl Slabbert but this was not heeded and the end result is a system that has not been implemented anywhere in the world and has met with skepticism even from ANC veterans.

DA MP Adriaan Roos argued that a bill meant to give effect to a constitutional right discriminates against independent candidates because it consigns them to the provincial list by treating provinces as constituencies, but excludes them from the proportional representation list.

“The first glaring problem is that the bill proposes that independent candidates be able to stand for election to the national assembly in each province, however, it bans them from standing on the proportional representative list,” Roos said.

“They can only gain a region to national assembly seat in one province and the rest of their votes are discarded. However, they must pay the fee and submit the support petitions in every province. This has the result that an independent can gain enough votes across provinces to gain a seat but not be awarded a seat.

‘Furthermore, they are banned from contesting 200 of the 400 available seats. This is clearly unfair.”

The provincial seats will be calculated first and then there will be a recalculation process in which votes left over once an independent candidate reaches the required threshold will go to the party that received the most votes.

It means that parties may get more than their proportional share of seats.

The Council for the Advancement of the South African Constitution (Casac) said it was regrettable that Motsoaledi and MPs had not looked to the municipal system when drafting the bill and instead devised a novel system that contrives provinces as super constituencies for the purpose of national polls and distributes excess votes cast for independent candidates to parties, “thereby increasing their share of the vote”.

“It is therefore totally untested, and seemingly unworkable in so far as being able to ensure free and fair elections, the outcomes of which must result generally in proportional representation as required by the constitution. In its current design, the bill devalues some votes and undermines the sacrosanct principle of each vote having equal weight.”

It creates an unequal playing field, Casac stressed, where independent candidates are at a great disadvantage to political parties.

They are not only excluded from the PR list but also required to get at least 8,000 signatures and identity numbers of their supporters to qualify to stand for election, whereas political parties need just 1 000.

Parliamentary spokesperson, Moloto Mothapo, said the Portfolio Committee on Home Affairs, which was tasked with processing the Bill, received 107 written submissions and 13 oral submissions from individuals and organisations, including One South Africa Movement, Africa School of Governance, Zolani Zonyani, Citizens Parliament, Organisation Undoing Tax Abuse (OUTA), Congress of South African Trade Unions (COSATU), Abatsha Force of Change, Independent Candidate Association, and the Inclusive Society Institute.

Submissions were also received from the 70s Group, New Nation Movement, Indigenous First Nation of South Africa and the Council for the Advancement of South African Constitution.

Mothapo said the committee also conducted provincial public hearings in all nine provinces from 7 – 23 March 2022, where a total of 3,483 people attended the public hearings and 610 made oral submissions, with 389 supporting the Bill and 222 rejecting the current format of the Bill.

However, he said that due to the complexity of the Bill, including the demanding extensive public participation process, the committee foresaw that it was not going to meet the Constitutional Court deadline of 10 June 2022.

In this regard, prior to the expiry of the deadline, Parliament approached the Constitutional Court to request an extension period of six months to finalise the Bill.

Mothapo said the Constitutional Court granted an extension until 10 December 2022 to complete the processing of the Bill.

In the further processing of the Bill, the committee invited the Department of Home Affairs, the Electoral Commission, and Parliamentary Legal Service to comment on the report on public participation, and the report formed the basis of the committee deliberations, where it deliberated on the Bill on several occasions and held meetings during the Parliament’s Constituency period in June, July and October 2022.

“The extended deliberations led to the committee proposing additional amendments to other sections of the Electoral Act, 1998, which were not part of the Bill and proposed other material changes to various definitions and clauses in the Bill. As a result, the committee requested permission from the National Assembly to extend the scope of the Bill, in terms of the National Assembly Rule 286(4)(b) and (4)(c).

“The National Assembly granted permission on 1 September 2022, whereby on 2 September 2022, the committee advertised these proposed amendments and called for public submissions two weeks later on 16 September 2022, in order to ensure that members of the public have a chance to comment only on those proposed amendments to the Bill,” Mothapo explained.

With reference to the renewed call for public comments, Mothapo said 258 submissions were received, comprising 254 email submissions and three hand-delivered submissions.

“Also, 13 substantive submissions (emails) encompassing over 100 pages of inputs were received that included three physically hand-delivered submissions from 'Civil Society' with a total of 1,218 signatures from 'Defend our Democracy' being supported by 56 organisations and from DearSA providing a summary of its emailed submissions.

“The committee considered all the received submissions and respectively deliberated on them. All these resulted in five significant changes. The committee having reconsidered the amendments in the Electoral Amendment Bill, recommended that the House approves the Bill,” Mothapo said.

The Bill will now be sent to the National Council of Provinces (NCOP) for further consideration and concurrence.

10 october 2022

'SHAM' ELECTORAL AMENDMENT BILL POSES THREAT TO 2024 ELECTIONS, SAYS DEFEND OUR DEMOCRACY

PRESIDENT CYRIL RAMAPHOSA HAS EXACTLY TWO MONTHS BEFORE HE SIGNS INTO LAW A BILL THAT WILL, FOR THE FIRST TIME IN THE HISTORY OF SOUTH AFRICA, ALLOW INDEPENDENT CANDIDATES TO CONTEST ELECTIONS. BUT THE PROPOSED LAW IS ALREADY FACING THREATS OF LEGAL ACTION FROM CIVIL SOCIETY ORGANISATIONS

The 2024 general elections are under threat of not being credible and fair, says Defend Our Democracy.

It says the threat can only be halted by President Cyril Ramaphosa, who could refuse to sign into law the Electoral Amendment Bill and refer it back to Parliament for further input, or to the Constitutional Court for a confirmation order of the constitutionality of the legislation.

If the bill is challenged in court on the basis of fairness, elections could be delayed as the Electoral Commission of SA (IEC) has indicated that it would require about 18 months to prepare for the elections.

According to Defend Our Democracy, the bill is profoundly flawed and a “sham”. The civil society organisation advanced this view on Monday as it made an impassioned plea to Members of Parliament and Ramaphosa to reject the bill.

Parliament has been racing to finalise the details for the new electoral dispensation following a landmark Constitutional Court ruling two years ago that independent candidates could participate in provincial and national elections. The court gave Parliament two years to effect the necessary changes.

“Now, with months before the Constitutional Court deadline to finalise the bill, we believe that Parliament is putting at risk the 2024 elections. The 2024 elections must accommodate independent candidates and the IEC has to have time to prepare for it. But instead of considering an option that is viable for the country, Parliament has instead gone for a flawed model which can be legally challenged.

“We therefore reiterate our call to MPs to vote no. We call on President Cyril Ramaphosa to not sign off this sham of a bill,” Defend Our Democracy said in a statement.

The Constitutional Court has given Parliament until the start of December to finalise the bill and Ramaphosa until 10 December to sign it off.

If the bill is passed, prospective candidates will be subject to stringent guidelines, including that candidates will have to garner just over 8,000 voter signatures to be eligible. Political parties currently require 1,000 signatures to register with the IEC.

Experts and civil society organisations have taken issue with this, slamming it as an unfair practice. However, Home Affairs Minister Aaron Motsoaledi has repeatedly told Parliament that guidelines need to be tough to establish which candidates are serious and have a solid support base.

Defend Our Democracy would not say whether it would approach the courts should MPs and Ramaphosa forge ahead with the bill. Neeshan Balton from the Ahmed Kathrada Foundation, however, confirmed that: “Work has already started around it; when the time is right, I think we will come up with those details.”

Defend Our Democracy has accused Parliament of rushing to pass the bill even though it is unfair. It is calling for changes to the voting system that will benefit voters and allow the public to hold MPs accountable, but insists that it does not want to see the elections postponed.

“If they pass this bill, and it is then challenged in court because it is unfair, this will delay the IEC further in preparing for the 2024 elections. We don’t want the 2024 elections to be delayed, so Parliament needs to listen to us now about making fair and credible changes to the electoral system.”

However, advocate Mojanku Gumbi from Defend Our Democracy, indicated she was confident Ramaphosa would make a sound decision. “I know the President will apply his mind independently because this is a fundamental constitutional issue even if his party has decided otherwise.”

Former Gauteng premier Mbhazima Shilowa said: “The irony is that the President is supposed to sign this bill on the 10th of December, which is international Human Rights Day, and it would be a tragedy if he were to sign a bill that takes [away] our rights on international Human Rights Day.”

Why is the bill unfair?

Defend Our Democracy says the bill is unfair because:

  • At national level, independent candidates are required to get double the number of votes for a seat in Parliament that a political party requires.

  • If an independent candidate were to vacate their position once elected, the bill does not allow for that vacancy to be filled through a by-election. It allows for a recalculation that could result in a position being filled by a political party.

  • Parliament did not sufficiently consult with the public about the bill, nor has it taken into account very reasonable arguments put forward by civil society about why the bill is unfair.

  • The point of changing a voting system is so that voters can know who they elect to Parliament and then hold their MPs accountable. In local government elections, candidates are known by voters in the wards where they stand. With this bill, the whole country is considered one ward at a national level and a province is considered a ward at a provincial level.

“Ultimately, this bill would mean that political party representatives in Parliament and provincial legislatures won’t be compelled to come to you in the next five years to explain why Parliament may not have held ministers accountable. Is this the kind of public representative that our country needs?” asked Defend Our Democracy.

The group has vowed to embark on a mass education campaign to familiarise ordinary members of society with the implications of the bill. It has also called on the public to engage with their local constituency offices and ask MPs to, “explain why they will be voting for or against the bill that benefits them more than it benefits us all”. DM

7 october 2022

BIG SHAKE UP FOR ELECTION LAWS IN SOUTH AFRICA - WITH MORE NAMES EXPECTED ON THE BALLOT

PARLIAMENT HAS FACED CHALLENGES IN REFORMING SOUTH AFRICA'S LEGISLATION REGARDING ELECTIONS, BUT WITH IT REACHING ITS FINAL STAGES, QUESTIONS AROUND IT CONSTITUTIONALITY REMAIN

After an impactful Constitutional Court ruling in June 2020, Parliament was tasked to renovate the electoral system to allow independent candidates to run for political office without being affiliated with a political party.

Allowing individuals to contest elections has been argued to broaden the options for people to choose who they want to represent them. The inclusion of independent candidates is also said to drive democracy as there would be more political competition.

The Electoral Amendment Bill seeks to change the Electoral Act of 1998 to provide provisions for the election of independent candidates to the national parliament and provincial legislatures.

Parliament said it has now reached a ‘workable system’ under the Electoral Amendment Bill and is in the final stages of the legislative process after multiple delays.

The bill has been in parliament since June 2020 and has undergone weekly deliberations this year since May.

Legal experts from Cliffe Dekker Hofmeyr noted that it is a challenging task to amend the bill as the principle of proportional representation has its part to play in democracy. The firm provided the following example:

“If come the next general elections, there are 20 million registered voters; and a popular individual running for office obtains a mandate from two million voters, it cannot be possible that despite securing 10% of registered voters, the individual is given only one seat in whichever legislature they ran for. Such an outcome would be grossly unfair and disenfranchising towards the voters,” said Cliffe Dekker Hofmeyr.

Speaking to Newzroom Afrika, Brandon Pillay, a member of the Home Affairs Portfolio Committee dealing with the amendment, said that individual candidates need some measurement of prominence and support.

For this reason, there is a required percentage of signatures needed by a candidate from its constituency indicating support. Political parties, however, at the current moment, do not require such signatures.

The threshold of signatures has been lowered since it faced backlash – originally being at 50% of the total votes received for a seat in parliament. Pillay said that it is now required that if a seat was worth 44,000 votes, then 20% of the 44,000 voters would be required to be signatories; this amounts to 8,800 signatures.

Political parties, on the other hand, according to Pillay, require a founding document and 1,000 registered voters in respect of the National Assembly. He said that this, however, is dealt with by different legislation, and the new Electoral bill primarily deals with allowing independent candidates to contest elections, not accommodating them.

Pillay said that there has to be an indication of some level of support for independent candidates, as political parties have already shown a level of support.

Whether the bill will be finalised by the next 2024 election, Pillay said that it had now reached a point where it can be finalised.

Despite this, there is a view that the approach made by Parliament could deter independent candidates from contesting elections. Pillay said this is a view of NGOs and is not the case.

Various civil society organisations are considering legal action against the bill noting that its introduction would be unconstitutional, reported News24.

The groups said that Home Affairs is dealing primarily with a minority decision of a ministerial advisory committee that pushed the sole use of a proportional representation system when dealing with independent candidate inclusion, not a mixed one that accounts for a single-member constituency alongside proportional representation.

NGO My Vote Counts said in light of the upcoming deadline of the 10th of December 2022 – if Parliament continues this route and endorses a flawed participatory process, it would not only bring the Act’s constitutionality into question but also pose several risks to the upcoming 2024 general election, reported News24.

5 october 2022

MMUSI MAIMANE: HERE'S HOW WE BUILD A RESILIENT AND MODERN ECONOMY THAT REWARDS ALL

MMUSI MAIMANE: HERE'S HOW WE BUILD A RESILIENT AND MODERN ECONOMY THAT REWARDS ALL

On Heritage Day I launched a new political party – Build One South Africa (Bosa) that will appear on the ballot paper in 2024 as an umbrella body to unearth and elect homegrown leadership in communities across the country. After three years on the sidelines, I felt the time was ripe to step back into the arena and play my part in fighting for the country I so dearly love.

I did so because I believe our politics is broken and its citizens are suffering. I return to the arena with greater determination and more vigour than before to fix our politics so that our economy can grow and serve every citizen fairly.

Building a versatile and modern economy is central to building a cohesive society. The truth is the South African economy still represents a concentrated model with a small political and economic elite benefiting from the majority of the spoils. Here I wish to outline a few ways we could change this pattern and uplift millions of citizens.

First, a relentless focus on SMMEs and entrepreneurs. We require consultation with SMMEs to understand how regulation aids or inhibits the growth of small businesses and a complete overhaul of the funding of SMMEs is required. Coupled with the provision of policy and infrastructure which supports our local economies, an example is the regional production of energy for consumption where it is produced. And targeted support of the informal economy – micro-enterprise in townships.

Broader consultation with business bodies to understand what aspects of the current labour legislation inhibit employment growth is needed. Particularly what requires reform and how best to introduce incentives to job creation and skills training. We would work together to drive private-public sector job creation which aligns with the skillset of the 10 million unemployed South Africans.

The strategic relationships within our region and internationally hold powerful potential for economic development. Our relationship with the Southern Africa Development Community (SADC) countries must be reformed to create a trading bloc which fosters economic development and growth. By following the Association of Southeast Asian Nations development partnership model, we can conduct a review of the SADC visa process.

I have engaged energy experts about initiating a process to overhaul our state-owned enterprises – chief amongst them Eskom. It is centred on diversifying our energy supply and incentivising cities to increase procurement of energy from alternative sources. Within five years, the goal is to build an energy grid that encompasses an entire wheel of energy supply, in collaboration with our SADC counterparts.

President Cyril Ramaphosa has lamented the economic consequences of Covid-19, the KwaZulu-Natal riots of last year and the global economic situation as it pertains to the cost of living. However, he fails to recognise that these occurrences either are borne out of – or demonstrate – the fact that our economy is dual in nature. Some participate and many are left out. Let’s reset this.

South Africa’s empowerment policies should be redrafted to focus on rewarding the hard quantitative measures of new employment creation, employment maintenance, tax payments and export contributions made by investors.

We additionally propose the establishment of a jobs and justice fund to which businesses will contribute their empowerment funding and which will be administered by public finance professionals, not politicians. The fund will ensure real empowerment through distribution to real empowerment initiatives, which bridge the gap between power and potential.

Our country’s public finances are on the brink of collapse, a third of our national budget goes to servicing payments on existing debt. We require a bold financial repurposing effort to direct public funds to vital areas of growth and development.

Currently, the South African government spends R365-billion on social welfare grants. We will ensure that these benefits are retained. Our focus will be on making sure that this money is used stimulate both the rural and township economies by creating local purchasing channels that ensure that social grant money is circulated within local communities and is not extracted by big business. This will entail the distribution of cashless transactional tools across all tax-registered small and micro businesses. These SMMEs will form part of a large government-supported procurement platform.

Based on a high-level expert-led due diligence exercise, we have identified R500-billion of annual budgeted expenditure that is defrauded by corrupt government officials. We will put an immediate stop to such expenditure, freeing up vital funds for our proposed initiatives.

Too few individuals and companies pay the overwhelming majority of tax. The South African Revenue Service (SARS) is going some way to remedy this by ensuring a wider net of collection, targeting those who are not paying any or all of the tax which they should be paying. SARS must be equipped and empowered to deliver on its mandate – the body need to be protected from capture and allowed to employ the brightest and best talent that South Africa has to offer. SARS should be an employer of choice for graduating finance professionals.

To ease the burden on new, mainly black entrants to the economy, we propose a minor tax rebate for those who support family members in what is colloquially termed “black tax”. As a young professional or new job entrant who can show SARS that you directly support family members that were discriminated against by apartheid, you would be eligible for tax rebates.

To support the 12.4 million South Africans who are presently unemployed, immediate avenues into the labour market need to be opened. In this regard we propose a drastically expanded public works programme. Any person of working age who is unemployed should have the option of enrolling for paid community service projects within walking distance of their homes.

These could be either privately or state administered and range from general clean-ups to community patrols, and assistance on infrastructure repair or construction projects. These public works programmes will pay at the current public works programme rate of around R100 a day and create an opportunity for one day of paid work per week. This initiative would cost the fiscus in the region of R30-billion a year.

In parallel to this initiative, we propose a complementary private sector-led initiative that can create the opportunity for unemployed people to accept employment from a private employer under a similar wage (R100 a day) and health and safety conditions as those of the public works programme.

Young South Africans are particularly impacted by unemployment. We need to assist this sector of our society to become meaningful participants and contributors to the economy and long-term growth of South Africa.

We propose the introduction of a voluntary national civilian service year that bridges the transition from school into the working world. This year will allow matriculants to enter work-based training in the community healthcare, basic education, or policing fields, gaining valuable work experience while earning a small stipend.

Coalitions are not easy to navigate, but we dare not fear change. Our country will be best served by a change in government and the manner in which we are governed. Build One South Africa will soon present models of how to best manage coalitions and build a future for all our citizens.

23 september 2022

HOW WE ELECT OUR LEADERS - TIME FOR A RETHINK?

HOW WE ELECT OUR LEADERS - TIME FOR A RETHINK?

Mmusi Maimane, head of the One South Africa (OSA) movement and erstwhile leader of the Democratic Alliance (DA), confirmed this weekend that he would be running for president. This was ahead of the official launch of his party – what Maimane was calling a ‘platform’ – in Soweto this weekend.

Songezo Zibi, former editor of Business Day and founder of the Rivonia Circle, also recently said that he would be running for president, as did former chief justice, Mogoeng Mogoeng.

It almost seems that more people are planning on running for President in 2024 than those who do the annual Comrades Marathon. But in South Africa a person cannot actually run for President. What a person can do – and this is why Maimane is now creating a political platform – is be elected to Parliament as a representative of a party.

South Africa’s system of government is a parliamentary one, not a presidential one. This means that South African voters do not elect the President, this is the task of the 400 MPs who are elected every five years to (in theory) represent the interests of South Africans.

However, some have begun suggesting that South Africans should elect the President directly, rather than leaving this to our MPs. A proposal from the Zondo Commission suggested that if the President was directly elected, the destructive tenure of Jacob Zuma would not have been possible, something which I and others think is unlikely.

And it is not a simple task to simply decide to elect the President directly. South Africa is a parliamentary democracy, not a presidential one. Oversight of the chief executive of the state should be done by Parliament, and in democracies less dysfunctional than ours, this is the case. But if we decided that the President should be elected directly we would need to do a complete overhaul of the structure of government. It simply does not make sense to directly elect the chief executive in a parliamentary system. Israel experimented with direct election of the prime minister some twenty years ago, but abandoned the experiment after only three elections, as the inherent incompatibility of directly electing the head of government in a parliamentary system became apparent.

However, what South Africa should perhaps consider is separating the role of head of state from that of head of government. Many countries around the world do so, with a president acting as a ceremonial figurehead, with a prime minister (or chancellor as the position is known in Germany, or Taoiseach as it is known in the Republic of Ireland) as the head of government. South Africa itself did this when it initially became a republic in 1961, with a ceremonial president serving alongside an executive prime minister until 1984, when the roles of president and prime minister were combined.

‘Does not rule’

The role of a ceremonial president was well captured by Bhimrao Ambedkar, who helped draft India’s post-independence constitution. He said of the position: ‘the President occupies the same position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the Nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known.’

In Germany the president is similarly ‘above’ politics, with the individuals in the position generally resigning their party membership for the duration of their term as President.

Splitting the role of President of this country into that of a ceremonial president and executive prime minister would certainly not be a silver bullet to the problems that South Africa faces, but would lift the head of state above the fray of party politics. A ceremonial president would embody the state and represent all its people and their values and aspirations, while allowing a prime minister to get their hands dirty in the messy business of governing and party politics.

However, South Africans shouldn’t completely jettison the idea of directly electing (at least some of) our leaders.

Cities are increasingly becoming more important political and economic units, as the world continues to urbanise. In many cases large cities are more influential and have greater economic output than countries. For example, the GDP of Johannesburg is greater than that of each of our neighbouring countries, and its economic output is probably bigger than that of all of our neighbours combined.

Key driver

There is a growing school of thought that cities need directly elected mayors in order to reach their potential. The United Kingdom has been a key driver of this, with many of its major urban areas, including London, directly electing a mayor, rather than relying on a city council (effectively a parliamentary type of arrangement) to govern.

Some of the advantages of directly electing a mayor is that it can break the hold of traditional parties on city government, allow for the creation of a long-term strategy for a city, give the city a ‘face’ in dealing with other levels of government and investors, and increase the public’s interest in city management and governance.

Again, this is not a silver bullet to the problems of South Africa’s cities, but it’s time to start thinking about doing things differently. The way we have been doing it hasn’t worked, whether in our cities or nationally.

It’s not only time to think outside the box but perhaps we need to get a brand new container.

4 AUGUST 2022

INDEPENDENT CANDIDATES WILL BE THE 'REJECTS' FROM POLITICAL PARTIES

INDEPENDENT CANDIDATES WILL BE THE 'REJECTS' FROM POLITICAL PARTIES

By Michael Appel

Electoral reform, paving the way for independent candidates to stand for office at a provincial and national level, places South Africa on a “dangerous road” that requires careful consideration.

So believes Beatie Hofmeyr, speaking in her capacity as the ANC’s representative at the National IEC Multi-Party Committee. Hofmeyr is a veteran and expert in the electoral and local government field having been involved in candidate selection since the 1990s.

In June 2020 a Constitutional Court ruling ordered Parliament to amend South Africa’s electoral legislation within 24 months. This was to allow for independents to stand in elections as the Bill of Rights makes provision for, while the existing electoral act stipulates you can only contest elections as a member of a political party. This conflict within our legislation was supposed to have been corrected by June this year but Parliament asked for an extension to the deadline until 10 December 2022.

Hofmeyr was speaking at a webinar titled “How democratic are our political parties?” hosted by My Vote Counts. She is warning that allowing for independent candidates to stand for national office is a practice made provision for in only a handful of countries around the world.

“My prediction is that independents will be the rejects from political leadership competitions in all the parties…it’s a dangerous new road we’re going down [with this electoral reform]. And it’s not one that has been tried effectively in any but six countries where there are high rates of literacy and political maturity. So for me, we’re in a very confused system. We’ll see how it works but the reality is, if we have 300 independents and 50 parties, we are going to have a ballot paper that is about 40 pages long.

“Think about counting those votes and checking that there are not two votes on each ballot paper. Think about boxes you need, the printing you need. The voter education you need, and it’s a nightmare,” says Hofmeyr.

The governing party’s misgivings regarding electoral reform have been raised with the Independent Electoral Commission (IEC). Hofmeyr warns it will create more problems than solutions to the issue of a lack of accountability within party political structures.

Hofmeyr also touched on the ANC’s electoral committee headed up by former President Kgalema Motlanthe. New rules aimed at improving transparency have been drafted which specify exactly how and on what money may be spent when campaigning for a top job in the ANC. Chief Justice Raymond Zondo’s recommendation that consideration should be given to enacting electoral reform that allows for directly electing the president of South Africa was labelled by Hofmeyr as “political opinions…not solutions necessarily. We need to do a lot more research before we toss our whole political system out because of that.”

In a recent statement issued by the ANC’s national spokesperson Pule Mabe, the party made these comments about independents.

“At the moment, parties pay R200,000 deposit for national and R45,000 per province – they win back their deposit if they win one seat. The committee should decide if the same threshold could apply for deposits for independents. One seat is one seat – whether for a party or an independent.

“Similar to independents in wards, independent candidates and parties that do not have any seats from previous elections, must be able to show that they have at least some support that could potentially win a seat. We should have a very low limit of support to allow serious parties and independents to participate, without encouraging frivolous parties and people and overcrowding the process,” read the ANC statement.

In a recent interview with BizNews, Independent Candidate Association founder Dr Michael Louis was adamant that this is a “once in a lifetime opportunity” to effect meaningful electoral change but believes feet-dragging by Parliament has the potential to thrust the country into crisis ahead of the 2024 national election.

It will be an election, Louis believes, in which independent candidates have a critical role to play in the unfolding coalition nature of national governance. Watch the interview with Louis below.

15 MARCH 2022

MEDIA STATEMENT: INDEPENDENT CANDIDATES MUST BE TREATED THE SAME WAY AS POLITICAL PARTIES ON ELECTION DEPOSITS

A DELEGATION OF THE PORTFOLIO COMMITTEE ON HOME AFFAIRS HAS CONCLUDED THE FIRST OF THREE PUBLIC HEARINGS IN THE FREE STATE WITH A STRONG VIEW EMERGING THAT INDEPENDENT CANDIDATES SHOULD BE TREATED THE SAME AS POLITICAL PARTIES FOR THE PAYMENT OF ELECTION DEPOSITS.

The committee is continuing with a public participation process across the country and yesterday started hearings in Gauteng and Free State.

The view was that it will be patently unfair that there is a special dispensation when political parties and independent candidates contest for the same positions. For the 2019 provincial and national elections, the Electoral Commission of South Africa (IEC) approved election deposits of R200 000 for parties wishing to contest national elections and R45 000 per provincial election contested. The view was that these amounts should also apply to independent candidates.

There was widespread support for the Bill, albeit with suggested amendments aimed at strengthening it. Some of the suggestions presented included the call for stricter guidelines for participation as an independent, calls for discarding votes in cases where an independent candidate achieves excess votes, a clear process of objections to signatures supporting an independent candidate’s candidature, and clear punishment for any person seeking to defraud the electoral system by submitting forged signatures for candidature. Also, similar to previous hearings, there was a strong view that to protect the fiscus and avoid continual by-elections, vacancies that arise must remain vacant.

Furthermore, there was support for the proportional representation model, with participants saying it allows for greater representation of women, youth, and other marginalised groups who might ordinarily be excluded under a constituency-based system.

Generally, there was a convergence of views that the time is ripe for the inclusion of independent candidates to participate in provincial and national elections and that this is a sign of democratic maturity.

Despite the broad support for the Bill, some opposed it, suggesting that South Africa is not administratively ready to run elections that include independent candidates. The high number of candidates might make the process difficult, they said.

Also, some participants at the hearings thought that the system envisioned in the Bill is unworkable in that as it is presented it will require an independent candidate to get at least 82 000 votes (in the Free State) to gain a seat. There was also a call for the committee to consider the majority report of the Ministerial Advisory Committee, especially in relation to the transfer of votes.

The delegation will today hold the second leg of hearings in Senekal in the Free State. The committee invites all individuals and interested organizations to come and make inputs on the bill, to ensure that the final product is reflective of their will and aspirations. The committee is cognisant that these hearings happen while the country continues to face the risks posed by Covid-19. The committee has taken into consideration this and has in place mitigating plans to ensure participants’ safety.

19 OCTOBER 2021

RISE IN INDEPENDENT CANDIDATES THIS ELECTIONS SHOW A PROMISING SIGN OF CITIZEN ACTIVISM

RISE IN INDEPENDENT CANDIDATES THIS ELECTIONS SHOW A PROMISING SIGN OF CITIZEN ACTIVISM

The most recent candidate list for the province shows just more than 80 ward candidates are registered – an increase of more than 30% in the number of wards where independent candidates are campaigning alongside those nominated by parties and civic organizations.

Nationally the number of independent candidates for the local elections from 2011 to 2016 increased by more than 13% from 754 to 855.

Close to 80 local parties and civic organizations are registered in the Western Cape to contest the elections with representative candidates in addition to the parties with which voters are more familiar.

Close to 40% than these organizations declare themselves to be outright civic associations not aligned to or primarily concerned with party-political representation.

In 2016 the number of parties and organizations contesting the local election in the Western Cape were 76.

This year the “non-traditional” parties and organizations as a cohort already are more than the total of 2016 – it’s about the daily needs and particular interests of residents, they would claim.

These increases may be read as a promising signal for what the future of citizen activity may hold. Yet, it is the actual voter turnout that will show if these developments have been able to galvanize broader citizen involvement with the elections as an important feature of a mature democracy, even if only one among several. Still, the steady increase of independent candidacy and civic organizations contesting the municipal elections may be indicative of how society and citizens respond to the politics of the day, especially this year, with what seems to be sharper increases than before.

The relationship between three connected endeavours in the life of a society offer productive perspectives to explore the reasons for the increases – continuing political dramas, the nature of civic organizing, and the levels of citizens provocation.

“Political dramas” refer to actual political events and the role political actors play in developing situations, as well as how the state, media and citizens respond to events in public and private discourses.

“Civic organizing” refers to how diverse communities come together to design, establish and work with public forums and structures to address concerns, promote interests or protest in their own interest. When citizens organize in this way they create civic organizations – the civics, which may set not only service delivery as their agenda, but a variety of concerns that may be cultural, linguistic, and religious, among others. What makes them similar is an underlying commitment to be a voice for the concerns and rights of a particular group.

“Citizen provocation” refers to the multitude of overt and hidden ways with which citizens are frustrated and taunted, either intentionally or not, into some form of protest, either as individuals or as part of a group.

This form of provocation is most evident in the intimate spaces of the family and community, where people freely share their perceptions of, and angers at, political dramas and even the civics. It relates to the broader combination of public discourse, media reporting and everyday conversations.

Arguably then, it is how the political dramas of society combine with the way citizens organize for their unique interests, and with what provocative images and messages they face every day, which determine the extent of their independent action.

16 march 2021

JOINT ELECTORAL REFORM WORKSHOP; WITH MINISTER AND DEPUTY MINISTER

JOINT ELECTORAL REFORM WORKSHOP; WITH MINISTER AND DEPUTY MINISTER

Meeting Summary

Video: Electoral Reform Workshop, 16 March 2021

Legal Opinion on New Nation Court Judgment 22 June 2020
New Nation Movement NPC & Others v President of RSA & Others (CCT110/19) [2020] ZACC 11 (11 June 2020)
 
The Electoral Reform virtual workshop was held jointly by the Portfolio Committee on Home Affairs and the Select Committee on Security and Justice in light of the Constitutional Court’s judgment that the Electoral Act is unconstitutional as it does not allow individual candidates to contest elections. Parliament was given 24 months to amend the applicable electoral legislation. The Chairperson stated that the Constitutional Court’s judgment must be taken as a self-criticism and reflection on the manner Parliament has interpreted the Constitution on electoral legislation, to ensure that shortfalls are corrected, and give proper weight and consideration by all stakeholders.

The Minister of Home Affairs explained that Constitutional Court held that freedom of association implies both freedom to associate and freedom not to associate. Practically, it means that independent candidates should be allowed to exercise their right to stand for public office, and if elected, to hold office, without being coerced to join a political party. A comparative study of international electoral systems reveals at least five established electoral systems, with variations. The Minister outlined these systems with examples. A Ministerial task team of experts has been appointed to study these issues and provide advice.

Mr. Valli Moosa, the chairperson of the Ministerial Advisory Committee on the Electoral System, spoke of the reasons South Africa adopted the current electoral model at the dawn of democracy. Ensuring electoral reform is no easy task, as it goes to the heart of the country’s democracy, which remains a very political matter. There is now the rare opportunity to consider a new electoral system. The task is to deliver an electoral system that is long-lasting and durable and in the interest of the future generations of South Africa. The chosen electoral system must remain in place for the next few decades. It is crucial to take politics out of this process. The electoral system adopted must be in keeping with our constitutional order, including accountability and fairness, and that the outcomes of the elections are proportional. Other constitutional principles to be adhered to include national unity, transformation, and the centrality of the voters and citizens.

EISA’s briefing focused on the three main types of electoral systems, including the proportional representation system, the plurality / majority / first-past-the-post system, and the mixed system. The type of electoral system is not the key driver of voter turnout. While any adjustments to an electoral system meet resistance, major reforms particularly can create fertile ground for elevated political conflict and potential instability. Recent proposals to introduce electronic voting in Botswana is an example of electoral reform not done well, leading to resistance and elevated concerns amongst voters. Malawi’s recent court-ordered electoral system reform managed a highly contested election well. It is essential that voters and parties are engaged to maximize trust to ensure that meaningful electoral reforms are implemented.

The Electoral Commission (IEC) noted the June 2022 deadline for signing the Electoral Amendment Bill by the President. It noted these factors for the 2024 elections:
• Electoral system that includes constituencies: Provisional timeline consists of Parliament deciding on a new electoral system by 30 October 2021 and amending the legislation over the remaining 15-month period. This would allow the IEC to adjust voting district boundaries to new constituencies and modify its operations by the end of October 2023. The proclamation of the election dates is 26 February 2024, following general voter registration, to ensure elections by the earliest date of 22 May 2024.
• Electoral system that excludes constituencies: Provisional timeline consists of Parliament deciding on a new electoral system by 30 June 2022 and amending the applicable legislation over the remaining 23-month period. This would allow the IEC to modify its electoral operations by the end of October 2023. The proclamation of the election dates is 26 February 2024, following general voter registration, to ensure elections by the earliest date of 22 May 2024.

My Vote Counts was excited by the prospect of independent candidates at provincial and national level. The Slabbert Report highlighted challenges of accountability in the current electoral system. The change to the system provides the potential for these to be addressed. The judgment deepens political choice both for those who want to stand to be elected as well as for the electorate. The impact of independent candidates includes a reverse in voter apathy, an increase in voter turnout, establishing a direct link with voters and providing resources to constituents, creating a more competitive political space, and the incentive for elected officials to perform as promised and to serve their constituents. It acknowledged that the inclusion of independent candidates cannot solve all issues of accountability. Independent candidates are already in local government elections which have created problems in that sphere of government. In addition, independent candidates do not have the infrastructure, support, or the finances of political parties.

Most Members were of the view that independent candidates will contribute to addressing the disjuncture between candidates and the electorate and enhance the degree to which political officials can be held accountable. Public participation is crucial in this entire process moving towards a new electoral system. It is critical that the Municipal Demarcation Board is brought into the conversation on the impact of the Constitutional Court judgment on demarcation. Emphasis must be placed on accountability, because it is not a given that a change in the electoral system will enhance the accountability of politicians. Some Members felt that there is no time for big changes at this point and the new electoral system should remain proportional, in line with constitutional principles.

Meeting report

The Chairperson welcomed the Minister and the Ministerial Advisory Committee on Electoral System to the meeting, including its chairperson, Mr. Valli Moosa, and the delegations from Home Affairs, IEC, EISA and My Vote Counts.

Mr. Valli Moosa, Ministerial Advisory Committee on the Electoral System chairperson, requested the Parliamentary Legal Advisors to provide a timeframe and overview of the legislative process for amending the legislation as required by the Constitutional Court judgment.

Opening remarks by Chairperson
Chairperson Bongo stated that the joint workshop has been scheduled for two days but the Portfolio Committees have seen fit to postpone the second session that would have focused on political parties. The purpose of the first session is to provide a broad overview of the process and considerations that must be kept in mind in the Constitutional Court judgment of 2020 to ensure Parliament’s task of making relevant amendments are on time. The Constitutional Court’s judgment is that the Electoral Act is unconstitutional because it does not allow individual candidates to run for political office. Parliament was given 24 months to amend the legislation. There is an arduous process ahead for the two parliamentary committees. It is paramount that the ideals of a united, democratic, and prosperous South Africa are kept at the heart of the deliberations in adhering to the Constitutional Court judgment. The process of changing the electoral system must involve the electorate.

Opening remarks by National Assembly Deputy Speaker
Mr. Lechesa Tsenoli, NA Deputy Speaker, stated that he was stepping in for the Speaker, Ms. Thandi Modise, who could not attend the workshop. To amend the electoral system of the country is a critical part in the democracy of South Africa. The ideals that are sought to be achieved are to build a non-racial, non-sexist and democratic society. Any changes to the current electoral system must be made in light of these ideals. The Constitutional Court judgment must be taken as a self-criticism and reflection on the manner that Parliament has interpreted the Constitution in the electoral legislation, to ensure shortfalls are corrected, and given proper weight and consideration by all stakeholders. Mr. Tsenoli stated that Parliament must identify and assess the short-term and long-term objectives to be achieved through this process, while also considering the importance of technology in our current digital age. The goal is to ensure that the people of South Africa can effectively participate in the elections of the country.

The Chairperson agreed that in responding to the Constitutional Court judgment, all stakeholders must consider the electorate that wants to have a say on how they vote. At the end of the process, it is the task to deliver an electoral system that is exceptionally long-lasting and durable and in the interest of the future generations of South Africa.

Constitutional Court judgment: briefing by Minister of Home Affairs
Minister of Home Affairs, Dr. Aaron Motsoaledi, presented the briefing.

Background to the Constitutional Court judgment:
On 20 June 2020 the Constitutional Court judgment in the New Nation Movement case declared the Electoral Act to be unconstitutional to the extent it requires citizens to be elected to the National Assembly and Provincial Legislatures only through their membership of political parties. This declaration of unconstitutionality was held to be prospective from the date of the order, but its operation was suspended for a period of 24 months to afford Parliament an opportunity to remedy the defect in the Electoral Act. Hence, the date by which the defect must be corrected, and a Bill to be assented to by the President, is 10 June 2022.

In the New Nation Movement case, the Applicants argued that the Electoral Act is unconstitutional based on sections 18 and 19 of the Constitution on the rights to freedom of association and political choice. There were two central issues under consideration by the Constitutional Court:
• if the electoral system only through political party membership unjustifiably limits the right to freedom of association in section 18 of the Constitution,
• if it involves the content of the right contained in section 19(3)(b) of the Constitution and if the Electoral Act limits that right.

The Constitutional Court reasoned that the right to freedom of association becomes central in the interpretative exercise to determine the content of section 19(3)(b) of the Constitution. On whether section 18 included the negative element, the Constitutional Court relied on the European Court of Human Rights, the African Court on Human and People’s Rights, and the Canadian Supreme Court. These judgements ruled that freedom of association also includes a negative right, simply put, freedom not to associate. Hence, the Constitutional Court held that freedom of association implies freedom to associate and freedom not to associate. Practically, it means that independent candidates should be allowed to exercise their right to stand for public office, and if elected, to hold office, without being coerced to join a political party.

The Constitution requires that an electoral system be introduced through the enactment of national legislation. In 1998, the Electoral Act was passed by Parliament and it retained the system of proportional representation for elections for the National Assembly and legislatures of the nine provinces. What must be borne in mind is that the Electoral Act did not deal with the electoral system as required by the Constitution. It relied on interim mechanisms taken from the Interim Constitution.

To remedy this, the Cabinet appointed the Electoral Task Team (also known as the Slabbert Task Team) to draft new legislation in 2002 that would produce the electoral system. The Slabbert Report proposed an electoral system which is a multi-member constituency system where 300 National Assembly members must be elected through such constituencies and 100 NA members must be elected through a closed party list by political parties. However, some members of the Slabbert Task Team favoured the current electoral system. No steps were taken to implement these recommendations. During November 2017, the High Level Panel led by former President Kgalema Motlanthe released a report reviewing current legislation, including the Electoral Act. It recommended that Parliament should amend the Electoral Act to provide for an electoral system that makes Members of Parliament accountable to constituencies on a proportional representation and constituency-based system for national elections. These recommendations have not been not implemented.

In its judgment, the Constitutional Court was fully aware of the doctrine of separation of powers and did not venture into the question as to which electoral system affords the electorate accountability and fairness. The court stated that: “That is territory this judgement will not venture into. The pros and cons of this or the other system are best left to Parliament which … has a mandate to prescribe on electoral system". The question that the joint workshop and future deliberations must answer is if it really matters which electoral system is adopted by South Africa.

Further global considerations:
In 1948, the National Party came to power. It changed the course of this country in a way unimaginable. But the National Party polled only 37% of the total votes. The then party in power polled 49% of the total votes – more than 12% of what the National Party polled, yet the election was lost. In England, the Conservative Party under Margate Thatcher adopted far-reaching right-wing economic and social policies. But it came into power with only 41% of the votes. Tony Blair did the same in 1997 and 2001. His Labour Party came into power with 43% of the votes. Those types of results were only possible due to a particular type of an electoral system. Such results would not be possible in other types of electoral systems.

Comparisons between five distinct electoral systems:
A comparative study of international electoral systems reveals at least five established electoral systems, with variations. The five types were outlined:

• Single member constituency system, where four countries (United Kingdom, United States of America, Canada and India) were studied. The system of the United Kingdom is what made the National Party, the Conservative Party, and the Labour Party ascend to power despite winning a smaller percentage of votes cast. The USA has the same system but with known variations such as the electoral college and its president standing for election alone separate from the party. India, a former British colony, adopted the same system but realized it would not align with its caste-system. As a result, India reserved some constituencies specifically to people belonging to the scheduled castes.

• Mixed-electoral system that is used by various countries, especially Germany that adopted the system after the Second World War. It combines party list proportional representation with single member constituency site system. Seats allocated under the party list component of the system are used to compensate for any distortions in the seats-to-votes ratio produced at the electoral district (constituency) level. A number of countries in recent years have adopted this system, including Hungary, Italy, New Zealand and Venezuela.

• Closed-list system, which is the current electoral regime in South Africa.

• Preferential list system, which is a variant of proportional representation. This approach is followed in the Netherlands, Denmark, and Finland.

• The last approach was to assess the electoral systems in Africa. Botswana follows a first-past-the-post approach where the winner takes all majoritarian electoral system in a single member constituency system. Zimbabwe separates its presidential and parliamentary elections, and also follows a first-past-the-post approach with multi-member constituencies that correspond with the country’s ten administrative provinces. The approaches followed in Kenya, Nigeria, and Senegal has also been considered by the Department in this research process.

The Constitutional Court judgment leads to the need for amending other legislation, including the Public Funding of Represented Political Parties Act 103 of 1997, Electoral Commission Act of 51 of 1996, Local Government Municipal Demarcation Act 27 of 1998, and Political Party Funding Act 6 of 2018. The DHA has appointed a Ministerial Task Team of experts in these fields to study all these issues and provide advice accordingly.

Ministerial Advisory Committee on the Electoral System briefing on progress made
Mr. Valli Moosa, Advisory Committee Chairperson, stated that the Committees and stakeholders must be mindful of the reasons South Africa currently has the electoral model that it has followed since the dawn of its democracy. In 1994, the country was crying out for an end to the Apartheid era and for the introduction of democracy. This included extensive negotiations with the Apartheid regime on the form of the country’s democracy. At this stage, the people who had been continually denied the right to choose their government were becoming impatient, and there was a need to conclude the negotiations in a timely manner. On the other hand, the resistance to change in the country was becoming more violent, including right-wing violence in an attempt to prevent change. It was clear that the country would enter an unpredictable situation unless it showed decisiveness. At this point, the date for the first democratic elections was settled, which necessitated the establishment of an electoral system. This included the consideration of the overwhelming majority of South Africans who have never voted before, the importance of voter education, the lack of a voters’ roll, limited time frames, and the lack of identification documents. This was also a period of heightened suspicion, and there was a need to have an electoral system that was simple, straight-forward and trusted by the majority of South Africans. The establishment of the country’s electoral system was made in the middle of a revolution.

A new electoral system can now be determined after South Africa has a democratically elected government. Ensuring electoral reform is no easy task, as it goes to the heart of the country’s democracy, which remains a very political matter. There is now the rare opportunity to consider a new electoral system. The task to deliver an electoral system must ensure it is exceptionally long-lasting and durable in the interests of the future generations of South Africa. The chosen electoral system must remain in place for the next few decades. It is crucial to take politics out of this process. There should not be a move away from the fundamental philosophy of our Constitution, and the electoral system adopted must be in keeping with our constitutional order, including accountability and fairness, and that the outcomes of the elections are proportional. Other constitutional principles that must be adhered to include national unity, enabling transformation, and the centrality of the voters and citizens. While there is not a lot of time left for Parliament to enact the necessary amendments, it is fortunate that a lot of work has been done over the last few decades which will be supplemented by the engagements with stakeholders.

Electoral Institute for Sustainable Democracy in Africa (EISA) electoral system options
Mr. Grant Masterson, Head of Governance at EISA, focused on three main types of electoral systems, including the proportional representation system, the plurality / majority / first-past-the-post system, and the mixed systems. The benefits and weaknesses of these were outlined:

1. Proportional representation electoral system followed in South Africa (provincially and nationally), Italy, Norway, Finland, and Sweden: Benefits include that every vote counts, there is fairness and opportunities for smaller parties, minimal gerrymandering, and ensuring gender representation. Weaknesses include a weak link between the elected Members of Parliament and their constituents, centralization of power in political parties achieved through a system of closed lists, complex calculations, and voter apathy.

2. First-past-the-post / plurality / majority / system followed in UK, USA, Zimbabwe, Tanzania, and France: Benefits include competitive and unpredictable elections, simplicity, decentralization, and inclusion of independent candidates. Weaknesses relate to fairness, wasted votes, gerrymandering, majority run-offs, lack of gender representation, and floor crossing incidents.

3. Mixed systems followed in South Africa (local government), Germany, Lesotho, Bolivia and New Zealand: benefits and weaknesses include variability, and strategic or tactical voting.

The types of electoral systems are not key drivers of voter turnout. Best performing nations by voter turnout: Turkey has an 88.97% voter turnout, following a majority two-round open-list voting system, with a compulsory voting law. Sweden has an 82.08% voter turnout, following an ‘apparentment’ open-list voting system, with no compulsory voting law in place. Australia has an 80.79% voter turnout for a plural preferential, instant run-off voting system, with a compulsory voting law. Belgium has a 77.94% voter turnout for the D’Hondt list voting system, with a compulsory voting law. South Korea has a 77.92% voter turnout for a plural mixed-member voting system, with no compulsory voting law.

Electoral systems are regularly subject to major and minor reforms. While any adjustments to an electoral system meet resistance, major reforms particularly can create fertile ground for elevated political conflict and potential instability. Recent proposals to introduce electronic voting in Botswana is an example of electoral reform not done well, leading to resistance and elevated concerns amongst voters/political parties. Malawi’s recent court-ordered electoral system reform managed a highly contested election well. It is essential that voters and parties are engaged to maximize trust to ensure that meaningful electoral reforms are implemented.

Electoral Commission (IEC) on timeline planning for Constitutional Court judgment
Mr. Mosotho Moepya, IEC Commissioner, said the 20 June 2020 Constitutional Court declaration of unconstitutionality was suspended for 24 months for Parliament to remedy the defect in the Electoral Act. The date by which the defect must be corrected and a Bill assented by the President is 10 June 2022. This timeline has implications for stakeholders, including Parliament, political parties, the IEC, and civil society organizations. The timeline relates to the national and provincial elections coming up in 2024.

Key dependencies:
The planning timeline for the national and provincial elections in 2024 is premised on key dependencies. Based on the 2019 elections, the earliest possible election date for the national and provincial elections is 22 May 2024, and the latest date is 20 August 2024. An election timetable of 86 days is assumed for the national and provincial elections coming up in 2024, allowing for a period of voter registration. This process is dependent on the conclusion of amendments to the Electoral Act, and the receiving of constituency boundaries for demarcation.

Before constituency boundaries can be demarcated and the electoral system adjusted, Parliament needs to consider and adopt a revised electoral system for the national and provincial elections, and conclude legislative amendments. The IEC would require a 12-month period from the receipt of the constituency boundaries to the election date to prepare electoral operations. These preparations will include the modification of various business systems (such as the national and provincial elections results system, the candidate nominations system, and the coordination information system), adjusting voting districts, updating the voters roll by way of targeted communication and registration, and the conducting of extensive voter education and communication campaigns for the new electoral system.

Envisaged scenarios for the new electoral system:
• Electoral system that includes constituencies: The IEC assumes that an existing institution such as the Municipal Demarcation Board (MDB) would require at least 18 months to demarcate constituency boundaries for Parliament and the provincial legislatures, in accordance with the amendments to the Electoral Act. Assuming that the national and provincial elections in 2024 are conducted at the earliest possible date, and that Parliament decides on a revised electoral system that includes constituencies, the IEC said the provisional timeline consists of Parliament deciding on a new electoral system by the end of October 2021 and amending the applicable legislation over the remaining 15-month period. This would allow the IEC to adjust voting district boundaries to new constituencies and modify its operations by the end of October 2023. The proclamation of the election dates is scheduled for 26 February 2024, following general voter registration, to ensure elections by the earliest date of 22 May 2024.

• Electoral system that excludes constituencies: assuming that the 2024 national and provincial elections are conducted at the earliest possible date, and that Parliament decides on a revised electoral system that excludes constituencies, the IEC said the provisional timeline consists of Parliament deciding on a new electoral system by the end of June 2022 and amends the applicable legislation over the remaining 23-month period. This would allow the IEC to modify its electoral operations by the end of October 2023. The proclamation of the election dates is scheduled for 26 February 2024, following general voter registration, to ensure elections by the earliest date of 22 May 2024.

My Vote Counts briefing on the role of independent candidates
Mr. Joel Bregman, MVC Senior Researcher, reported that My Vote Counts was founded to improve the accountability, transparency and inclusiveness of elections and politics in South Africa. The work of the organization is to ensure that the political and electoral systems are open, fair, and accountable to the public and that they remain relevant.

My Vote Counts conducts research to inform advocacy and popular education activities, to provide an understanding of political and electoral issues and to provide policy alternatives for South Africa’s political and electoral systems based on the changing economic and socio-political context. The organization initiates litigation, as a last resort, to ensure that the constitutional principles of transparency, inclusiveness and accountability remain the basis for our political and electoral systems, and its work has focused to enhance aspects surrounding political party funding transparency, access to information, and electoral integrity and reform.

Response to the Constitutional Court’s judgment:
My Vote Counts, as an organization, is deeply excited about the prospect of independent candidates at provincial and national level. The Slabbert Report highlighted issues of accountability in our electoral system. The change to our system provides the potential for these challenges to be addressed. The judgment deepens political choice, both for those who want to stand to be elected as well as for the electorate.

The impact of independent candidates includes a reverse in voter apathy, an increase in voter turnout at elections, establishing a direct link with voters and providing resources to constituents, decreasing limitations to only political parties, creating a more competitive political space, and the incentive for elected officials to perform as promised, and to serve their constituents. However, the limitations include that the inclusion of independent candidates cannot solve all issues of accountability. Independent candidates are already in local government elections which have created problems in that sphere of government. In addition, independent candidates do not have the infrastructure, support or the finances of political parties.

Discussion:
Ms. Pemmy Majodina, ANC Chief Whip, thanked the delegations for the informative briefings. She expressed concern about the current decline in voter turnout at elections. The introduction of independent candidates will have a significant impact on voter turnout in South Africa’s elections. One of the reasons behind voter apathy is that people do not believe that their vote will be effective in bringing about a change in the current political system. There seems to be a disjuncture between the candidates and the people who put them in power. The electoral reform will result in a constitutionally-sound system, and independent candidates will contribute to addressing the disjoint between candidates and the people who put them in power. It will also enhance the degree to which political officials can be held accountable.

Mr. M Chabane (ANC) appreciated the broad thinking expressed by the contributions. This is the beginning of the process of engaging with people on the ground and other stakeholders to ensure an efficient electoral system is designed and implemented in South Africa. It is critical that the MDB is brought into the conversation on the demarcation of voter districts to explore the impact of the Constitutional Court judgment, especially for the upcoming local government elections.

Mr. A Roos (DA) agreed with Mr. Moosa that the chosen electoral system must remain in place for the next few decades, and that is crucial to take politics out of this process as today’s ruling party might be tomorrow’s opposition party. Thus it is necessary to find an electoral system that works for all. Public participation is crucial in this entire process moving towards a new electoral system to ensure that Parliament is representative of the people of South Africa.

Dr. P Groenewald (FF+) stated that public participation in the process is important to ensure that the chosen electoral system serves South Africa. It must be borne in mind that the result of the elections should be proportional, which is a constitutional precondition to South Africa’s electoral system. Emphasis must be placed on accountability, because it is not a given that a change in the electoral system will enhance the accountability of politicians. It is important to educate voters that accountability refers to the electorate’s ability to change the candidates or representatives during elections.

Chairperson Bongo agreed with Dr. Groenewald and stated that the Constitution ensures a multi-party democracy, which must be adhered to in the new electoral system that Parliament adopts.

Mr. K Pillay (ANC) appreciated the briefings. He referred to the presentation by My Vote Counts that stated the inclusion of independent candidates would bring more accountability. What would be the line drawn between a local councillor and a Member of Parliament at a local level? This issue needs more discussion before this process reaches finality. Public participation in the process is important and all stakeholders must be engaged.

Mr. S Swart (ACDP) stated that it is key for the Committees to endorse what Mr. Moosa presented to Members as the task is to deliver an electoral system that is exceptionally long-lasting and durable in the interest of the future generations of South Africa. There is no time for constitutional amendment, and the new electoral system should remain proportional, in line with the constitutional principles. He appreciated the Constitutional Court’s judgment on independent candidates but stated that the discussions on this topic must include the measures that will be available to hold these candidates accountable.

Mr. M Tshwaku (EFF) expressed concern on the slow pace at which the process is continuing, which is a result of the inefficiencies within the ruling party and the non-implementation of the recommendations of the Slabbert Report and that of the High Level Panel. These amendments must be finalized before the deadline set by the Constitutional Court. He appreciated the Constitutional Court’s judgment. The new electoral system must be constituency-centered and cannot be tinkered with. He agreed with Mr. Chabane that the MDB must be brought into the conversation on the demarcation of voter districts.

Mr A Nel (ANC) stated that Parliament is faced with the task to timeously give effect to the Constitutional Court judgment that independent candidates have the right to stand for election. However, the judgment also gives rise to the question on whether the electoral system requires reform, and Parliament must engage with this in a manner that involves the people of South Africa. There is no immediate correlation between type of electoral system and the attainment of various objectives. Putting constituencies in place will not by itself solve the issues of accountability. The question of electoral reform goes to the heart of South Africa’s constitutional democracy. The reason for the entire process is to build a non-racial, non-sexist and democratic society for the people of South Africa, and these are the ideals that must be centralized in the electoral system that will be adopted by Parliament and the country, as a whole. Aspects of social and political inclusivity must be given the proper weight in these discussions. Our society is still burdened with the painful effects of the Apartheid era, which links geography and race. Any electoral system that is adopted must take into account the lived realities of the citizens of South Africa. There must also be discussions on whether the inclusion of independent candidates will enhance the legitimacy of our elections.

Mr. Q Dyantyi (ANC) agreed that the task is to build a non-racial, non-sexist and democratic society for the people of South Africa, and these are the ideals that must be centralized. He appreciated the tone that has been set for the process to amend the electoral system of South Africa. He agreed with Mr. Moosa that the Committees and the stakeholders must deliver an electoral system that is exceptionally long-lasting and durable and in the interest of the future generations of South Africa. He thanked Mr. Moosa for the background on the current electoral system at the dawn of the country’s democracy. He also appreciated the pragmatic and practical timeframes presented by the IEC.

Mr. G Hendricks (Al Jama-ah) appreciated the briefings. Parliament must be opened to the people of South Africa, especially with the dramatic changes to our electoral system.

Minister Motsoaledi replied that it is easy to get lost in the complexities of an electoral system. There is no ideal electoral system in existence, but it is dependent on what South Africa needs, which is simplicity, the centrality of voters, and proportionality in representation. The guiding principles of the Constitution must be the foundations of the country’s new electoral system, and sufficient consideration must be given to these issues to ensure that the new electoral system is relevant to the people of South Africa. The ideal electoral system will be the system that suits the needs of the population of the country.

Mr. Moosa thanked everyone for the briefings and inputs. There is a high degree of convergence between the political parties on the reform of South Africa’s electoral system. There should not be a move away from the fundamental philosophy of our Constitution, and the electoral system that will be adopted must be in keeping with our constitutional order, including accountability and fairness, and that the outcomes of the elections are proportional. The requirements of the Constitutional Court can be met.

Mr. Masterson stated that more in-depth research must be made into the electoral systems adopted by other countries to determine what the demands of the South African constituencies are.

Mr. Moepya replied that the IEC is guided by the Constitution that outlines election timeframes and the term of office of the National Assembly. He thanked the attendees for the inputs received.

Chairperson Bongo thanked everyone for the briefings made and inputs delivered.

The meeting was adjourned.

13 AUGUST 2015

ELECTORAL SYSTEM ALIENATES VOTERS

REPRESENTATIVES MORE ACCOUNTABLE AND RESPONSIVE AND TO GIVE VOTERS MORE POWER TO DISMISS INCOMEPETENT ONES

One of the electoral changes the country desperately needs to introduce in conjunction with a change to the electoral system is an extra box to tick on the ballot paper, which voters who are unhappy with all the parties listed on the ballot paper, can tick.

This is very important in a political system where all the political parties are irrelevant and voters feel they have no credible choices in front of them.

SA’s current electoral system, the closed-party list proportional representative (PR) electoral system, adds to the disenfranchisement of ordinary voters and citizens.

In our current parliamentary and provincial electoral system, citizens vote for the party. The party decides on the order of the names on its candidates’ list. It is therefore, the party’s preferred list.

Once parliament is elected, the Members of Parliament elect the state president – not citizens who have to accept the choice of the party leaders.

The problem is that parliamentary representatives are accountable to political parties (leaders), not necessarily voters. MPs are not directly elected by their constituencies. The party leaders allocate MPs to “constituencies” after an election, which further undermines a relationship of accountability between elected representatives and constituencies.

The constituency almost never corresponds to where an MP comes from. The local “constituency” is often not even consulted about the choice of “their” MP.

That appointee therefore, has no obligation to be accountable to his or her deployed constituency – because the constituency cannot have him or her replaced if he/she does not perform.

There is little pressure on the deployed MP to listen to his or her “constituency”; all he/she needs to do is to please the ANC leadership that appointed him/her.

In the current system in order to advance, MPs serve the party leadership, uncritically doing the bidding of the leadership which has the power to reappoint MPs. The needs of the communities are therefore, not paramount. A community in the “constituency” of a hapless MP can appeal for a better performance as much as they want, it is means little.

Party candidate lists are compiled in most cases by the party leadership, or through slate voting – ANC members vote for a slate of candidates attached to a leader. This was how Jacob Zuma was elected ANC president at the party’s national conference in Polokwane in 2007.

Once in parliament, members are rarely critical of executive or Cabinet ministers when they report to parliament, fearing that criticising the very people with the power to decide on whether they will be on the candidate’s list for the next elections will be deadly for their careers.

The whole system breeds a culture where the leadership of the party – and not ordinary voters or members – is in control.

The current system also prevents individuals from standing as independents for parliament.

Elections since 1994 have consistently produced racialised and class-based electoral national election results – rather than diversity.

The electoral system at the local government electoral tier is different to the PR-system of the national and provincial system. At municipal level there is a mixed electoral system, whereby half the ward councillors are elected by a PR list process, and the other half directly through local representation at ward level (a constituency system).

Although local government has a mixed electoral system, party leaders still tightly control who is on the list of candidates. Astonishingly, in the 2011 local government elections, the ANC only released their mayoral candidates after the elections – with ordinary members, supporters and voters having had no say whatsoever in who “they were electing” as their city mayors.

The ANC party leadership then handpicked the mayoral candidates and presented them to their members, supporters and voters — after the elections.

Although there is a strong support in civil society for electoral system change, there is also strong political opposition to changing the electoral system.

The Congress of South African Trade Unions (Cosatu) has argued in favour of a mixed electoral system at national, provincial and local level. Cosatu proposed a 65% constituency-based, 35% proportional representation system.

Cosatu wants a referendum to test the electorate’s feeling towards a constituency-based electoral system.

In a discussion document for its 2006 conference, Cosatu said a constituency-based electoral system “will promote more dynamic contact between the people and public representatives, holds the possibility of people’s views being heard, and could introduce the element of constituents more directly determining candidates.”

The document went on to say: “The current system of proportional representation also undermines independent thought as individual careers depend on those in the party leadership and the deployment committee. Unless we can achieve it soon, the movement towards sycophancy is inevitable”.

When President Nelson Mandela left office in 1999, he called for a review of the electoral system. President Thabo Mbeki in 2002, established a task team, led by the late Frederick van Zyl Slabbert, to formulate parameters for a new electoral system. Their brief included deciding on whether floor-crossing should be allowed.

The task team released its final report in January 2003, and members were split 8-4 on the final recommendation. However, the majority called for an alternative electoral system which combined constituency and proportional representation models – a mixed system, not unlike that of Germany which has a mixed-member proportional system where voters can choose between political parties and individual candidates.

The Van Zyl Slabbert committee proposed a new, more constituency-based electoral system along similar lines: it should be based to some extent on the current system, but with multi-member constituencies together electing 300 members of the National Assembly and with a compensatory closed national list providing for 100 members.

The minority ANC-aligned members of the task team opposed the constituency-based proposals – following instructions from the ANC national leadership. They recommended the electoral system remain the same.

In 2003, Cabinet decided to reject Van Zyl Slabbert’s proposals and retain the current 400-member National Assembly and proportional representation electoral system.

The main reason why the current electoral system was adopted in 1994 was to include as many parties as possible into parliament. Some minority parties only secured seats because of the proportional representation system.

Even the Van Zyl Slabbert-led electoral task team found that the current electoral system is high on party fairness and party inclusiveness. It is also simple to implement. However, although the this system has boosted party representation and given room for a large representation of small parties, it has not brought about accountability.

The task team strongly questioned the system in terms of accountability in relation to voters. Many of the small parties are not very relevant to the ordinary voter, neither are they very accountable or responsive. A more constituency-based system would exclude such parties – but bring more accountability into the political system.

Clearly, SA urgently needs to make its electoral system more accountable and responsive to ordinary voters, rather than a plethora of small parties. A new electoral system must bring a direct link – accessibility – between voters and their representatives, must remain representative and must retain overall proportionality.

The current system causes alienation of voters from elected representatives, Parliament and the democratic system itself.

Finally, electoral reform cannot be implemented without broader institutional reform to make democratic institutions more accountable and responsive; and political parties must also become more accountable to their members and voters.

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