TESSA DOOMS | Proposed Electoral Amendment Bill does not protect and enhance right to vote

In June 2020, the Constitutional Court declared the current South African Electoral Act unconstitutional because it does not have provisions that allow independent candidates to contest elections at national and provincial levels, thus disenfranchising people who do not wish to belong to political parties.

One of the fundamental rights, responsibilities and powers afforded to people in a democracy is the opportunity to vote for public representatives. During the SA liberation struggle, the hope for freedom became tied to and vested into the right for all to vote as the ultimate symbol that freedom had been achieved. Prior to 1994, only white people had political rights to vote or be voted for.

As part of the negotiations leading up to the 1994 general elections, the question of the type of electoral system was debated. It was understood then that it was not only important that people had the right to vote but also the modality for voting. How we vote has consequences for fairness in the process, fairness of the outcome and the possibility of ongoing accountability of those elected to voters. The electoral system selected for the 1994 elections, that limits electoral participation to political parties and proportional representation at national and provincial levels, is a result of a negotiated settlement to ensure a multi-party outcome in parliament.

When the electoral rules were determined in the transition to democracy, a transitional electoral system was agreed on to allay the fears that numeric racial and ethnic “minority groups” had that once all people were allowed to vote, black people as a racial majority would not vote for white people, limiting their chances for representation in parliament.

The consequences of choosing a strictly proportional representative system in the early 1990s are beginning to show in 2022 and are proving to be limiting if not harmful to our democracy. These consequences include the dominance of parties and party bosses in determining the agenda and work of parliament. Effectively, because MPs are not elected by any people directly, they have no incentive to be mindful of the wishes of voters unless those people are powerful members of the party that deployed them. Parties and their members have become the de facto constituencies that elected persons at national and provincial level account to, whivh is why voters and citizens who are not members of parties are easily and often ignored.

Independent candidates not being allowed to contest elections has implications far beyond the candidates who may want to contest. It is a contributor to the proliferation of small and micro parties. Hundreds of political parties are being registered. In the last national election 48 parties contested nationally and over 100 contested at provincial levels. This fragments opposition politics and is proving divisive for society.

The current Electoral Amendment Bill that is being processed in parliament as a response to a directive by the court to ensure that the law allows for independent candidates to participate in the 2024 election is in its final stages. While the proposed bill technically allows for independent candidates to contest, the modalities in the bill amount to malicious compliance by a parliament of people elected through the current system that favours big and established parties. The proposed Electoral Amendment Bill would make elections unfair in the following ways:

1. It requires independent candidates to compete head-to-head with political party lists. Unlike the local government system where independent candidates compete in a direct election with other individuals in a ward – even if they are members of parties – the proposed bill forces them to contest with an entire party’s provincial list.
2. An independent candidate would need to contest across an entire province. They need the resources and reach to convince tens of thousands of people to vote for them, while a party has many candidates on its list mobilising across a province. It effectively divides the country into nine constituencies to fill 400 seats.
3. It requires independent candidates to get more votes than parties need for each seat. Due to a quota system created in the bill, at previous voting turnout levels independents would need almost 30,000 more votes per seat than parties.

Parliamentarians are yet to explain to the nation the rationale for selecting this system rather than simply replicating the mixed direct and proportional representation system we use at local government level or incorporating the recommendations from as far back as 2003 for a mixed system, as proposed in the Van Zyl Slabbert report.

By opting for a proposed bill that introduces inherent unfairness into our elections, parliament risks producing an unconstitutional bill and is in fact risking the viability of the 2024 elections. As the people parliamentarians are meant to represent, it is incumbent on all of society to interrogate the proposed Electoral Amendment Bill and demand an outcome that protects and enhances the right to vote.