National Assembly passes controversial electoral amendment bill amid protests from opposition parties

The National Assembly on Thursday voted by 232 votes to 98 to pass the electoral amendment bill that will allow individuals to stand for elected office as independents, but has been lamented by observers as a missed opportunity for thorough reform to enhance political accountability.

The bill was supported by the ruling ANC, as well as the Economic Freedom Fighters, the Pan Africanist Congress and the National Freedom Party after months of complaint from other opposition parties about how the manner in which vote allocation will happen is fraught and unfair.

Moreover, they believe it ultimately stands to benefit a ruling party in decline.

The Democratic Alliance (DA) did not support the measure, nor did the United Democratic Movement, the African Transformation Movement or the GOOD Party.

The bill was drafted because the constitutional court in New Nation Movement NPC and Others v President of the Republic and Others declared the current party list system unconstitutional in that it did not allow individuals or independent candidates to stand for election at a national or provincial level.

South Africa has operated under a proportional representation (PR) system for all of its democratic history. But the Constitution enshrines the right of every citizen to stand for elected office and there have been various calls since the 1994 elections for the country to move to some form of a constituency model.

The Van Zyl Slabbert Commission in a 2003 report recommended that South Africa adopt a mixed system in which MPs would be elected from multi-member constituencies, but this was ignored. 

Chief Justice Raymond Zondo, in his capacity as chairman of the commission of inquiry into state capture, pointed to the ravages of the present system in that politicians failed to call out corruption because they were beholden to their parties and not their voters. He was speaking in particular to the ANC, which had shown scant appetite for reform.

In the New Nation Movement judgment, Justice Mbuyiseli Madlanga dismissed the speaker’s argument that electoral reform was the preserve of parliament and the subject of an ongoing process. There was no process, he wrote, “and we do not know if there will be one”, before ordering that the law be amended.

Madlanga gave the legislature 24 months to effect the amendment, but the deadline was extended at parliament’s request. 

A ministerial task team assembled by Home Affairs Minister Aaron Motsoaledi initially mooted a hybrid system along the lines proposed by Van Zyl Slabbert but this was not heeded and the end result is a system that has not been implemented anywhere in the world and has met with scepticism even from ANC veterans.

DA MP Adriaan Roos argued that a bill meant to give effect to a constitutional right discriminates against independent candidates because it consigns them to the provincial list by treating provinces as constituencies, but excludes them from the proportional representation list.

“The first glaring problem is that the bill proposes that independent candidates be able to stand for election to the national assembly in each province, however, it bans them from standing on the proportional representative list,” Roos said.

“They can only gain a region to national assembly seat in one province and the rest of their votes are discarded. However, they must pay the fee and submit the support petitions in every province. This has the result that an independent can gain enough votes across provinces to gain a seat but not be awarded a seat. 

‘Furthermore, they are banned from contesting 200 of the 400 available seats. This is clearly unfair.”

The provincial seats will be calculated first and then there will be a recalculation process in which votes left over once an independent candidate reaches the required threshold will go to the party that received the most votes.

It means that parties may get more than their proportional share of seats.

The Council for the Advancement of the South African Constitution (Casac) said it was regrettable that Motsoaledi and MPs had not looked to the municipal system when drafting the bill and instead devised a novel system that contrives provinces as super constituencies for the purpose of national polls and distributes excess votes cast for independent candidates to parties, “thereby increasing their share of the vote”.

“It is therefore totally untested, and seemingly unworkable in so far as being able to ensure free and fair elections, the outcomes of which must result generally in proportional representation as required by the constitution. In its current design, the bill devalues some votes and undermines the sacrosanct principle of each vote having equal weight.”

It creates an unequal playing field, Casac stressed, where independent candidates are at a great disadvantage to political parties. 

They are not only excluded from the PR list but also required to get at least 8,000 signatures and identity numbers of their supporters to qualify to stand for election, whereas political parties need just 1 000.