Parliament fails again, putting party ahead of country in electoral reform bill

Three months to go: MPs’ last-minute rush to meet Concourt deadline torpedoes public participation

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28/03/2022 12:13:20

Parliament fails again, putting party ahead of country in electoral reform bill

Parliament’s public hearings on the crucial Electoral Amendment Bill were more of a public relations exercise than responsible action in the public interest.

What should have been a thoughtful consultation across the country about how independent candidates will be included in national and provincial elections became instead a shambolic rush that blurs the issues, promotes a minority position and does not honour the spirit of the Constitutional Court judgment.

In June 2020, the Concourt gave Parliament 24 months to amend the Electoral Act to include independent candidates, but the bill was tabled in Parliament only 19 months later in January 2022. The National Assembly committee held public hearing at the beginning of March and the NCOP committee has now rushed through public hearings in all nine provinces to meet the June 2022 deadline.

OUTA monitored the public hearings and the media, but found little evidence of active and widespread endeavours by Parliament to inform, educate and engage with the public on the bill.

This failure to actively engage with the citizenry, on a matter directly influencing their constitutional rights, is in itself an unconstitutional act. OUTA is also concerned with the way the bill is being handled: a huge rush to process it while superficially appearing to consider the public’s interests, while promoting only one electoral option.

What are the options?

In December 2020, the Electoral Laws Second Amendment Bill [B34-2020] was formally introduced to Parliament by Cope MP Mosiuoa Lekota (the “People’s Bill”). The Portfolio Committee on Home Affairs stopped the bill, saying it proposed substantive changes that could not be implemented in time for the 2024 elections.

In June 2021, the Ministerial Advisory Committee on Electoral Reform, set up by the Minister of Home Affairs, presented its report (the MAC Report), which outlined two options, a majority supported option and a minority supported option, although this report does not detail how the individual candidates will be accommodated. The majority option advocates for change to the current electoral system, using a proportional vote allowing independent candidates to stand and to form coalitions.

The majority option is supported by OUTA and other civil society organisations, including the Africa School of Governance, Citizens of Parliament, the One South Africa Movement and the Independent Candidate Association. It also reflects the option in Electoral Laws Second Amendment Bill – the “People’s Bill”.

In January 2022, the Electoral Amendment Bill [B1-2022] was formally introduced to Parliament, just five months before the deadline. This bill supports the MAC Report’s minority position.

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. (More on this here.)

OUTA’s comments on the bill

OUTA strongly supports electoral reform and the inclusion of independent candidates. OUTA participated in the Concourt case as a friend of the court, in support of changing the law.

OUTA believes the Electoral Amendment Bill fails to meet the threshold of constitutional compliance. The electoral system must promote transparency and public accountability of government and MPs. In short, the processes surrounding the compilation and introduction of this bill, as well as the content of the bill, are unconstitutional. The bill aims to make the least change possible in the law, which OUTA believes is inadequate and not in keeping with the spirit of the Concourt judgment.

OUTA calls for Parliament to return to the “People’s Bill” and the MAC Report’s majority option.

In February 2022, OUTA made a submission to Parliament, noting these problems:

1. Unequal proportional representation:   The bill, which is more aligned with the MAC Report’s minority option, seeks to merely slot independent candidates into the existing system. Independents would be expected to jump over mathematical quota calculations to hold only a single seat, even if they receive the majority of the votes.

2. Contesting of seats:  Independent candidates can contest only the 200 regional seats out of the 400-seat National Assembly and can contest in only one region, but parties can contest seats across all regions and seats.

3. Wasted votes: Once independents meet the relevant vote quota for a seat, they will be elected to the National Assembly. Any additional votes they receive will be discarded but surplus votes for parties are not discarded.

4. Inequality and impediment to human dignity: Discarding surplus votes goes against the principle that “every vote counts”. It is in direct contravention of the right of citizens’ votes to count equally, as well as the proportionality between vote share and seats. This is unconstitutional, conflicting with section 19 of the Constitution on political rights.

Parliament fails again

Since 2019, OUTA has published three annual reports on oversight of Parliament (see here). Every year, OUTA’s reports find that parliamentarians failed to defend South Africa against state capture and looting, failed to hold the executive to account, failed to prevent the systemic erosion of the state’s capacity, and failed to engage with their constituencies. 

These failures have a strong bearing on electoral reform: the calls for electoral reform are driven by public demands for MPs to account to the voters rather than to their parties. Parliament’s slow response to the Concourt order and the limited option in the bill finally presented to the public shows that parliamentarians have again failed to put the country ahead of their party interests.

More information

The Electoral Amendment Bill [B1-2022] can be tracked through Parliament on the Parliamentary Monitoring Group website here.
OUTA’s submission to Parliament on the bill in February is here.
The Concourt judgment ordering the law to be amended is here.
The Electoral Amendment Bill is here.

Video comment

A video clip with comment by Rachel Fischer, OUTA Research and Ethics Specialist, is here.
Picture: Shutterstock