MPs approve electoral legislation for 2024 independents despite misgivings, and IEC needs a new commissioner

23 Feb 2023

With four calendar days to go before the third Constitutional Court deadline, Parliament passed the Electoral Amendment Bill on the back of joint ANC and EFF numbers in the House, with 218 votes for and 81 against.

Thursday’s vote closes a controversial chapter where a civil society push for broader electoral reform, including constituencies with directly elected MPs, was dashed. Lawmakers chose a narrow technical approach to accommodate independents in national and provincial elections, as the Constitutional Court had ordered in June 2020.

But the public outcry and civil society campaigns did have an impact. The National Council of Provinces (NCOP) – in a clear response and in an unusual move for the council – introduced an electoral reform consultation panel to, again, relook electoral reform after the 2024 elections and, within 12 months, make “non-binding recommendations in respect of potential reforms of the electoral system…”, according to the new Clause 23.

Read more in Daily Maverick: “Electoral reform arrested – with political kick for touch after 2024 polls”

“While the Bill remains flawed, it may not be unconstitutional,” said Council for the Advancement of the South African Constitution (Casac) Executive Secretary Lawson Naidoo in a text message on Thursday.

“Also, the new panel provides a further opportunity for more meaningful reform.”

Casac has made submissions for broader reform, including constituencies, as part of a wider civil society push during the legislative process that required the Constitutional Court to twice extend its deadlines – from the initial 10 June 2022 deadline, first to 10 December, and then to 28 February 2023.

The Electoral Amendment Bill is now en route to President Cyril Ramaphosa to join four other bills in his in-tray waiting to be signed on to the statute book.

Parliament’s Bills Office was already in touch with the Presidency about the “deadline that is looming. We have done what we can do from Parliament’s side,” Thursday morning’s programming committee heard.

While the Constitutional Court’s end of February deadline applies to Parliament, the president is nevertheless under pressure. The Electoral Commission of South Africa (IEC) has to prep for the 2024 elections.

Already it’s tight with the poll between 12 to 17 months away – the IEC usually takes two-and-a-half years to organise an election. And the new law requires additional admin to register independents like signatures representing 15% of the votes needed for a seat and new ballots to represent independent candidates.

In addition, the seven-year term of IEC vice-chair Janet Love is ending. Chief Justice Raymond Zondo has already called for nominations in his role as head of the panel that interviews candidates and makes its recommendations to the president.

“I would be willing and honoured to serve a second term,” Love said in a text message on Thursday, confirming it was her term that’s ending.

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For Parliament to get to Thursday’s final adoption of the Electoral Amendment Bill, it took two extensions to the initial June 2022 deadline that were given, as the Constitutional Court effectively held nothing would be gained by not doing so.

But from the court documents emerge questions why Parliament did not proceed with the private members’ bill before the home affairs committee – and the inordinate delays as the home affairs minister’s draft law only reached Parliament in December 2021, or some 18 months into the 24-month Constitutional Court deadline, and then not to accepted legislative drafting norms.

Read more in Daily Maverick: “Electoral amendment proposals raise concerns amid pressure to meet June 2022 ConCourt deadline”

Various departmental, Cabinet and ANC processes unfolded, including the choice of narrow technical amendments to accommodate independents in national and provincial elections, as well as ANC speakers talking “minimalist option” in public hearings.

Read more in Daily Maverick: “As electoral reform deadline looms, ANC’s push for mini…”

Coincidentally, the ministerial advisory committee in its majority option recommended substantial electoral reform in its June 2021 report to Home Affairs Minister Aaron Motsoaledi.

Legislative processes took up most of 2022 before the National Assembly in October 2022 adopted the Electoral Amendment Bill in an acerbic debate which saw the EFF slate non-governmental organisations as “stooges”.

Read more in Daily Maverick: “ANC, EFF carry electoral amendments, slamming civil society push for greater reform”

Because the NCOP made changes in late November 2022, the amended bill had to return to the National Assembly. By 10 February, it was wrapped – although it needed the Constitutional Court to extend the deadline for Parliament to adopt the law again – this time from 10 December 2022 to 28 February 2023

For the DA and Freedom Front Plus, votes for independents remained a sticking point. Describing how votes for independents who did not gain a seat were pooled and reallocated to others, DA MP Adrian Roos said in Thursday’s declarations in the House: “This legislation fails on both fair participation for independents and on proportional representation.”

But the National Assembly home affairs committee approved the NCOP amendments and took them one step further, to include parliamentary oversight.

“The electoral reform consultation panel ... would be appointed by the Minister of Home Affairs, but also in consultation with Parliament and the IEC. The reporting of the findings of the panel will also include Parliament,” said the committee report published in the Announcements, Tablings and Committee Reports, Parliament’s record of work.

It’s an important intervention. Clearly referencing the June 2021 ministerial advisory committee report without mentioning it, African Christian Democratic Party MP Steve Swart on Thursday said the concern was that this pointed out “the work has already been done and that it will be a rehash ... What must be a concern is the decline in voting”.

ANC MP and home affairs committee chair Mosa Chabane described the bill as “the best version of our collective efforts”.

Despite the narrow legislative change to accommodate independents now, the possibility remains for broad electoral reform away from closed public representative candidates lists compiled by political parties to allow citizens to directly elect MPs in constituencies, alongside a proportional representation vote.

Whether that’s just fool’s gold remains to be seen. DM

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