With the 2024 national elections imminent, there are still unanswered questions about representation, most notably regarding independent candidates. Independent electoral analyst Michael Atkins explains why the Electoral Amendment Bill is problematic and a potential threat to democracy.
Please provide background on the Electoral Act and how the Electoral Amendment Bill was intended to fix some of its defects. What does it set out to change?
The Constitutional Court ruled in the New Nation case in June 2020 that the Electoral Act was unconstitutional in not allowing independent candidates to contest national and provincial elections. Parliament was given two years to remedy the defect.
The Electoral Amendment Bill was introduced to Parliament in January 2022, purporting to be a ‘minimalist’ change, with independent candidates ‘inserted’ into the existing electoral system. In the end, it took three rounds of public submissions, and 40 parliamentary committee meetings to iron out complications.
Why is the Electoral Amendment Bill so contentious?
The primary problem is the simplistic inclusion of individuals (independent candidates) on proportional representation ballots. ‘Inserting’ individuals into a system designed for parties inherently distorts proportionality. The only viable model is something like local government elections, with constituencies balanced by an overall proportional ballot.
Having two ballots for the National Assembly resembles this, but with whole provinces as ‘constituencies’. To avoid excessively long ballots, independents are limited to contesting regions, with consequentially higher vote thresholds to secure seats, compared to parties.
Excess votes for independent candidates inherently favour the largest party. Combined with high vote quotas, votes for independents simply count less than votes for parties. By including regional ballots in the overall seat allocation for the National Assembly, those voting for independent candidates similarly have less say in the composition of Parliament.
Barriers to entry for independents, and the low numbers who will be elected relative to votes cast, will strengthen the view that the system was designed to favour the largest party.
Whole provinces as constituencies for the National Assembly will have little meaning for voters.
What was the public participation process and was it adequate?
The legal boxes were ticked in holding public hearings, and accepting written submissions at the various stages, but the public was not well informed. It is also unusual to make decisions on an electoral system with only one option presented. Parliament’s evaluation and consideration of the detailed public submissions was inadequate.
Is civil society likely to challenge the Bill in the Constitutional Court, and what are the possible outcomes of this?
The Independent Candidate Association (ICA) and One South Africa (OSA) challenged the Bill, with the case heard on an urgent basis on 29 August 2023. The outcome was not known at the time of writing.
ICA sought to increase the seats available in regional elections to 350, to give independent candidates near parity with parties in respect of votes needed to secure a National Assembly seat. OSA challenged the high signature requirements, and the reallocation of excess or vacated seats, which is biased in favour of the largest party.
If these applications succeed, it would ameliorate the worst effects of the amended electoral system, making participation of independent candidates more viable.
Will elections be delayed as a consequence of the Constitutional Court challenge?
The court was very clear ahead of the 2021 local government elections that a delay in elections cannot be accepted. The applications seek a temporary ‘reading in’ of the proposed adjustments to be able to hold the 2024 elections within the stipulated period.
What would you consider an appropriate and fair course of action, and what will be required to achieve this?
Only a proper constituency system balanced by proportional representation would have produced a fair outcome. However, with no time ahead of the 2024 election, the best we can hope for is that the court orders the adjustments that remove the most glaring defects in the Bill.
How can companies and non-profit organisations best support democracy and the electoral process?
In the long term, civil society needs to engage actively with the Electoral Reform Consultation Panel, to allow a viable and fair system to be enacted for the 2029 election.
In the short term, it would help for business and for communities to support independent initiatives to observe and evaluate the conduct of the 2024 election. Aside from the overall political climate, the new electoral system creates substantial logistical challenges. Scrutiny of processes and results is needed to ensure that elections are conducted fairly and accurately.
Michael Atkins
Independent elections analyst
atkins@itrend.co.za
Source: The original version of this article was published in the Trialogue Business in Society Handbook 2023 (26th edition).