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20/10/2020 06:52:06
Picture: Flickr/GovernmentZA
OUTA asks Parliament to get on with electoral reform
Tired of politics? Very few South Africans realise the gravity of the Concourt judgment of 11 June 2020 on electoral reform and the potential it has to change our democratic landscape.
The Concourt judgment declared sections of the Electoral Act unconstitutional as the Act prevented independent candidates from standing in national and provincial elections. The court suspended this declaration of invalidity for two years, to allow Parliament time to amend the law to allow independent candidates in addition to party candidates. OUTA, which acted as an amicus curiae (friend of the court) in that matter, believes allowing independent candidates will help MPs and MPLs to be less beholden to party bosses and more to the electorate.
But Parliament has yet to start rewriting this law as instructed by the Concourt.
“We call on Parliament to stop dragging its feet and get on with the necessary amendments to bring about the accountability and more equitable distribution of power and resources that South Africa so desperately needs in the wake of state capture and systemic looting by corrupt individuals and families. The unholy matrimony between such lawbreakers and political parties will no longer be tolerated by civil society and ordinary South Africans,” says Matt Johnston, OUTA’s Parliamentary Engagement Manager.
“The time for accountability to the people is now – and the political stranglehold is at the heart of the problem we need to overcome together,” says Johnston.
OUTA is concerned that Parliament will do only the absolute minimum to comply with the Concourt order by accommodating independent candidates and leaving everything else the same. This will not bring about accountability and real electoral reform, and will be a missed opportunity.
Separate from the Electoral Act, currently Parliament’s own rules are expressly written to favour a majority rule in parliamentary decisions, which is naturally exploited by the majority party (and would be by any majority party). As we now know, political party doctrine dictates how Members vote on any given issue. How will this environment affect independent representatives in Parliament?
In the judgment, Constitutional Court Justice Mbuyiseli Madlanga highlighted the responsibility of Members of Parliament (MPs) to prioritise the interests of the country and not their political party. So how will this ruling and others impact on current behaviour? For now, MPs toe the party line as dictated by the Chief Whip of the party despite the Constitution being very clear about primary loyalty to the people.
South Africa has a unique opportunity to reset its electoral system and go back to the drawing board.
Since July 2020, the Portfolio Committee on Home Affairs in the National Assembly has been deliberating on a timeline for the amendment of the Electoral Act. The Electoral Commission of South Africa (IEC) has presented to this committee, shedding light on alternative electoral systems operating around the world for Members to consider in their upcoming amendment process.
In September 2020, OUTA set out to comment on a notice of intention from the leader of COPE, Mosiuoa Lekota, to introduce a Private Member’s Bill that would amend relevant electoral laws as ordered by the Constitutional Court. Our comment mainly raises concerns about parallel processes that may detract, rather than enhance, each other.
The IEC has also been tasked with implementing the Political Party Funding Act (PPFA). OUTA commented on the PPFA when it was being processed as a Bill in Parliament in 2018, and South Africa rejoiced when it was finally enacted by the President, although the date for this Act to take effect is still awaited. The PPFA establishes the Represented Political Parties Fund (RPPF) and the Multi-Party Democracy Fund (MPDF). The IEC is expected to administer these Funds as well as all information about where political parties get their money from and, we hope, how they use it.
This exposes the IEC to serious conflicts of interest and may subject it to strategic capture like all sorts of public entities were captured over the past decade for corrupt purposes.
An amendment to the Promotion of Access to Information Act, which promotes greater transparency in party funding, is also still awaiting a date for it to come into effect.
OUTA wants to see the implementation of both these pieces of legislation without further delay.
When independent candidates come into play, their power and resources will need to be regulated and accounted for in the same vein, but it is unclear how this will work. Thus far, OUTA has flagged the Minister of Home Affairs’ questionable suggestion that the Constitution may need to be amended to give effect to the Constitutional Court’s ruling. This seems to be a delaying tactic, and OUTA strongly disagrees with the suggestion.
Disappointingly, the PPFA was not implemented in time to apply to the expensive political party campaigns in the run up to the 2019 national and provincial elections. The IEC’s excuse was that it had to consider more public consultations first, but it had already received thousands of inputs on its draft regulations at that stage. Today, OUTA is determined to disable a similarly strategic delay of the incorporation of independent candidates in the next Provincial and National elections.
Political parties are, quite obviously by now, still not accountable to the electorate or the public at large for where they get their money and how they reward their generous donors. OUTA is sick and tired of constant revelations about kickback systems, tenderpreneurship, collusion, procurement fraud and downright theft of public resources which were intended to eradicate poverty, address inequality and drive economic growth for South Africans.
South Africans desperately need politicians to wake up and smell the coffee immediately. An electoral system where Members of Parliament and Members of Provincial Legislatures are more accountable to communities instead of parties is crucial. And we cannot wait for transparency around political party funding any longer.