Empty seats in Parliament — COPE debacle shines light on flawed new electoral law

As political competition intensifies — and with the ANC’s three-decade-long electoral dominance under serious and increasing jeopardy — a new law governing the way we vote for and elect the 400 Members of Parliament has been passed by Parliament and promulgated by President Cyril Ramaphosa.

The new law was ordered by the Constitutional Court back in June 2020 in order to accommodate the election of independent candidates to Parliament. The court ruled that it is unconstitutional to force a citizen to join a political party as a prerequisite to contest an election.

However, after almost three years and two timeline extensions, Parliament passed a new law that interprets the court’s finding in a minimalistic manner, seeking only to change what is obviously required, while maintaining the status quo of power dynamics.

In his 2018 book titled Winners Take All: The Elite Charade of Changing the World, author Anand Giridharadas argues convincingly that once an individual or grouping is in power and on the “inside track”, they rarely seek change that would undermine their position of power. There is little incentive to change anything.

Instead, they work to keep self-serving systems in place, using power and devious public persuasion tactics. It is clear this has been Parliament’s approach from day one. And that is why the One South Africa Movement (OSA) is taking this new law on appeal all the way back to the Constitutional Court.

As OSA awaits a decision on our request for direct access to the Constitutional Court, the urgency of the matter has intensified further with last week’s news that political party COPE is considering its future as a political party with its continual internal leadership strife, as it deregistered with the Companies and Intellectual Property Commission (CIPC).

This brings to light the matter of vacancies, which is one of the four central constitutional flaws with the current new law. I do not wish to comment on the possible resultant action from the IEC on the matter. However, what is of great importance is how the possible vacancies will be interpreted and proceed in respect of COPE’s two National Assembly seats.

In the event of a vacancy in a legislature of a seat allocated to an independent candidate, the Electoral Amendment Act provides that the seat will not be filled until the next national and provincial elections. Leaving the seat of an independent candidate unfilled in the event of a vacancy deprives the voters who elected that candidate of representation in the legislature. In De Lille v Speaker of the National Assembly, the Western Cape high court emphasised the importance of the representation of citizens in the National Assembly.

According to the new Electoral Amendment Act, in order to allocate the two new seats, the IEC must now use item 22 and 23 of schedule 1A to allocate the seats via re-calculation. In OSA’s application to the Constitutional Court, the unfairness of the re-calculations used to fill the vacancies is raised. In any such re-calculation, the quota is reduced, which automatically favours the largest party in Parliament to the detriment of all other parties and individuals.

As it turns out, if the Electoral Amendment Act is used to reallocate the two seats in the National Assembly vacated by COPE, then both the seats will be given to the ANC, increasing their seat tally from 230 to 232 in the National Assembly. Other parties will remain unchanged.

This recalculation involves a three-step process of calculating quota seats, followed by five seats allocated by means of the highest remainder, and then eight seats by the highest average votes per seat proceeds. The ANC would gain one extra quota seat, and an extra seat in the highest average calculation.

This bias in the re-calculation process violates the proportionality requirement in Section 46 of the Constitution, as well as Section 19’s guarantee of the right to free and fair elections. It is not merely that a party happens to get slightly more than their fair share, but that the process inherently favours the largest party in each instance and the proportion of their vote share. These concerns were conveyed to Parliament in the public submissions to the Electoral Amendment Bill last year. They were ignored and are now being legally challenged before the court.

In effect, the current new law has reintroduced mandated floor crossing through the back door. Floor crossing was ruled illegal and unlawful back in 2009 and it cannot be allowed back in order to strengthen larger political parties.

We believe these matters have become urgent and this constitutional conundrum that has arisen needs to be urgently ventilated to see justice served. DM