OUTA and other civil society organisations call on NCOP to improve the flawed electoral reform bill

OUTA joined many other civil society organisations as a signatory to this important call to the National Council of Provinces (NCOP) as it deliberates on the Electoral Amendment Bill. The Bill was passed by the National Assembly on 20 October 2022 (see here), despite strong objections by civil society which believes it does not go far enough to enable independent candidates. It is now under consideration by the NCOP, which called for public comment on the Bill. OUTA also made its own submission to the NCOP.

Below is the joint submission to the NCOP.

1. The undersigned organisations submit the following proposal in relation to the Electoral Amendment Bill currently under review by the National Council of Provinces (NCOP).

2. On 2 September 2022, the Council for the Advancement of the South African Constitution, My Vote Counts, Rivonia Circle, the Ahmed Kathrada Foundation and Defend our Democracy convened an Electoral Reform Indaba in Johannesburg. The civil society Indaba was hosted to gain a better understanding of the current Electoral Amendment Bill. The Indaba concluded that the Bill as it stands is flawed. This was followed by a number of other public meetings and civil society discussion sessions in various parts of the country, wherein concern was shared about the Bill and the implications for the electorate should it be passed.

3. The fundamental problem with our current electoral system is that members of Parliament are not chosen directly by the people. We want a system which allows the electorate to directly elect representatives and to be able to directly hold them accountable for decisions they make and the oversight they conduct. Those who represent us in Parliament, provincial and local legislatures should be directly answerable to the people in their communities and constituencies, and they should not only report to their political parties and elevate the interests of those parties over the interests of the people. They must primarily represent and account to those that elected them.

4. Moreover, the Bill ignores the findings of a litany of statutory commissions over the past two decades including the 2003 Frederik van Zyl Slabbert Report, the 2006 Parliament Report of MP Pregs Govender, the 2017 Kgalema Motlanthe High Level Commission and this year’s Zondo Commission Report.

5. With the aforementioned in mind, civil society organisations present at the Indaba were of the view that Parliament, and the NCOP, must reshape the electoral system in the interest of the public, through electoral reform that is credible, fair, and inclusive, and that promotes greater public accountability and responsiveness from elected representatives. The National Assembly has already voted in favour of this Bill and it is now the onus of the NCOP to reject the Bill as it currently stands.

6. Making changes to the electoral system affects the lifeblood of our democracy. Any change must take into consideration the principles of openness and transparency, and must be done in an inclusive manner that is responsive to the will of the people. Its design therefore requires real, thorough and broad public participation.

7. The Indaba outlined why the majority view of the Ministerial Advisory Committee (MAC) on Electoral Reform should be considered as a minimum basis for changing the electoral system. It should not be ignored in favour of a minority view that is vulnerable to legal challenge.

8. The current Bill as it stands, and the system that it proposes, has not been tested anywhere in the world before. The Bill is complex and does not result, in general, in proportional representation. It goes against the underpinning of the democratic and constitutionally prescribed principle of equality where every person’s vote is of equal value. The current Bill privileges political parties and further disadvantages independent candidates by making them compete on an unequal footing with political parties. This is manifestly unfair.

9. We urge the NCOP to consider a mixed constituency and proportional representation (PR) list system at a national and provincial level that includes the right of independent candidates to contest elections on an equal footing with candidates from political parties.

10. Given the short timeframes before the 2024 national government elections, there is an urgent need to find consensus on a way forward. In finalising the Electoral Amendment Bill, political role-players and the NCOP must appreciate that the broader public will not accept cosmetic changes to the system that advances the interests of political parties over those of the electorate.

11. We therefore implore the NCOP to adopt as a minimum basis the “majority view” of the MAC on electoral reform. This option can serve as a basis for what we believe electoral system change should be about. We also urge the NCOP to engage meaningfully with the technical submissions being made by civil society organisations which point out the fundamental flaws with the current Bill. The MAC majority view makes it far more equitable for independent candidates – ordinary people through their communities – to stand for public office and contest elections in an equal competition with individuals from political parties off their party lists. It also allows for greater public accountability, while maintaining proportionality.

12. We request the NCOP to review critically Parliament’s dogged insistence on using the MAC minority view as a basis for the Electoral Amendment Bill.

13. Various organisations have written to the Parliament and the Portfolio Committee on Home Affairs on different occasions pointing out the flawed nature of the Bill. By forging ahead with the flawed Bill, the NCOP stands the risk of having the finalised Electoral Amendment Act challenged in court. This further delay of the process will put enormous pressure on the Independent Electoral Commission to ensure an administratively smooth, credible, free and fair election in 2024.

14. As civil society organisations, we will continue educating, informing and mobilising the public around the importance of credible and meaningful electoral reform. We will also continue advocating against an electoral system that benefits political role-players over the interests of the electorate.

15. Electoral reform gives us an opportunity to change what was intended to be an interim system that Parliament was obliged to review, but failed to do until it was forced to by the Constitutional Court in 2020. Our current electoral system no longer meets the needs of ordinary people who wish to be more directly involved in our still fledgling democracy.

16. In a 1999 address to Parliament former President Nelson Mandela said: “We do need to ask whether we need to re-examine our electoral system, so as to improve the nature of our relationship, as public representatives, with the voters!” The opportunity for meaningful electoral system change should now not be missed by society at large, nor dismissed by political role-players who are once again placing their interests above those of the public.

Accountability Lab South Africa

African Presbyterian Bafolisi Church of SA

Ahmed Kathrada Foundation

Anglican Church of Southern Africa

Auwal Socio Economic Research Institute

Centre for Good Governance and Social Justice NPC

Citizens of Conscience Foundation

Congress of Business and Economics

Defend our Democracy

Direct Democracy South Africa

Dutch Reformed Church

Get Informed Youth Development Center

Groote Kerk

Gugulethu CAN

Independent Candidate Association South Africa

Institute for an African Alternative

ISIZIBA Community Based Organizations of South Africa

Johannesburg Against Injustice

Legal Resources Centre

Macua Rand West City Branch

Mfidikwe Bokamoso Community Development Forum Office

Mining Affected Communities United in Action

Muslim Judicial Council

Ntwane Community Development Forum

One South Africa Movement

PDO Solutions

Project Youth South Africa

Rivonia Circle

Solidarity

South African Christian Leadership Initiative

Southern African Catholic Bishops’ Conference Justice and Peace Commission

Southern African Institute for Responsive and Accountable Governance

Tujaliane Community Organisation

Voice of the People Movement

70s Groupobile