🔒 Change finally coming to SA’s Electoral Act – Dr Michael Louis

JOHANNESBURG — Some major and rather unreported events have happened in South Africa’s still relatively new democracy in recent days. Just this week, COPE leader and Member of Parliament, Mosiuoa Lekota, presented a private member’s bill in the House to get the ball rolling on changing the country’s Electoral Act to allow for independent candidates to run for election. According to a former Member of the Provincial Legislature in the Western Cape – Dr Michael Louis – these changes to the Act are essentially guaranteed following a key judgment by the country’s Constitutional Court judges. Dr Louis has been at the forefront of fighting for such changes as he’s previously also launched legal bids to change the law. Ultimately, changes to the Act could alter politics dramatically in South Africa. Take a listen. – Gareth van Zyl

It’s a pleasure to welcome a former Member of the Provincial Legislature, Dr Michael Louis, on the line from Cape Town.
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Michael, you’ve embarked on an 18-month legal process to try to change the Electoral Act in South Africa. There’s also been a private members motion in Parliament regarding this. Can you tell us more?

Thank you, Gareth. The big thing is, being a former member of Parliament, I think that a person understands the political landscape. And for me personally, it’s such a pity that it’s taken a crisis in our nation to prompt private individuals such as ourselves – who really understand the political landscape – to have to endeavour and embark on something that will change our political landscape. Hence, I’ve understood that there is a conflict in the legalities of our Electoral Act and that’s what we’ve embarked on from this long process.

What’s the problem with our electoral act right now; we have a proportional system, but what are the flaws in our system?

The bottom line is that Section 19 (3) (b) of the Electoral Act in 1998 says that everybody has the right to stand in public office. It’s a human right, and it’s a constitutional right. But our constitution says you have to belong to a political party, which means that there’s a huge conflict there.

It’s also against Section 18 of the constitution that says that everybody has the right to freedom of expression. Therefore, if our Electoral Act says that you have to belong to a political party, it restricts your ability to be able to express yourself in an appropriate manner. So there are huge constitutional conflicts. It’s a pity because I did write to the IEC to inform them of a conflict and that I wanted to debate it with them and to mediate with them. But they said that they’re not prepared to mediate, which means that I had to go to court about it.

Dr Michael Louis

You’ve gone to court and what has the outcome been?

Well, the big thing is that I must say that I have the most outstanding legal team. The legal firm is Norton Rose and we had the best senior silks, including Matthew Chaskalson, who helped SA draw up the National Constitution. They always said, “Michael, you can’t go directly to the Constitutional Court you must go to the High Court first” and my gut feeling said that this was a constitutional issue and I went straight to the Constitutional Court. When I went to straight to the Constitutional Court, against their advice, they were actually correct.

The Constitutional Court threw out my statement said, “It is not appropriate to come to us directly”. This was very unfortunate, but I think the gods were on my side because three months later in the ‘My Vote Counts’ judgment against the Constitutional Committee. The Chief Justice Mogoeng Mogoeng came and analysed it. It was all about private funding of political parties and he said, ‘This begs the Constitutional Court to look whether it’s not only about political funding of political parties, but it’s also about funding individuals and whether independents have the right to stand’.

The Constitutional Court then came out with a majority judgment where they said that independents do have the constitutional right to stand and no matter what their logistical constraints that right needs to be exercised, which placed the Electoral Act in a completely contradictory situation. That made me say, “Well, this is a fight that I’m not going to give up on because the Constitutional Court supports my interpretation of the act and the constitution”.

What happens now, do lawmakers have to change the act?

Yes. What actually happened here, and I don’t want to go into too much detail, but I then went to the High Court of the Western Cape to say that this is an urgent matter, the Electoral Act needs to be changed. The Western Cape High Court threw me out to say, “This is not urgent” and then they said, “No, this is costing too much money and too much time, the clock is against us”. Just by some miracle, Gareth, I was at a function and Mosiuoa Lekota walked up to me and we said to him “How can we change this country?” and he answered, “The only way to change this country is by changing the Electoral Act”. I said, “This is just what I needed” and 48 hours later, he presented in Parliament a motion of national interest to say that he’s going to present a private members bill to change the Electoral Act.

So what happened was that there was a debate in Parliament of national interest where Mosiuoa Lekota then presented to Parliament to say that the Electoral Act is unconstitutional and we face a constitutional dilemma. If Parliament doesn’t fix this act it could mean that the election is unconstitutional and that he will be presenting a private members notion regarding this. I’m very pleased to say that on Tuesday a new amendment bill for the electoral system was lodged as a private members bill supported by Kenneth Meshoe of the African Christian Democratic Party. I believe it’s the proudest moment in this nation, Gareth. I’m extremely excited and I think that the nation will be excited about it.

What are the chances of this act being reformed in the way that you want it to be reformed or becoming friendlier towards independents and moving towards a more accountable system? Because I’d imagine that many lawmakers on both sides of the fence in Parliament, the ANC, and probably even the DA, would not take lightly to this. They’ve, in fact, benefited from a party system and from often hiding behind a party system?

Well, the unfortunate thing is due to time we can’t go fully for the recommendation of the amendment of the bill according to the Van Zyl/Slabbert report, which was very constituency based. All we did in drafting the amendment bill for this election was to make independents stand. Whether they like it or not, no lawmaker in Parliament — not the ANC, the DA or anybody — can go against the constitutional provision to make an independents stand because South Africa also has a standing internationally with the human right that everybody has the right to stand. So I think the listeners can write it on their foreheads, “This is a “fait accompli”, and the Electoral Act will be amended for independents to stand for this election.

Could we have an independent candidate standing for the presidency then possibly, how would that work?

No Gareth, not in the amendment bill as a separate ballot, but what could happen is that if an independent is elected to Parliament, it does give Parliament the right to nominate and put forward a name for a president and that name could very well be an independent.

So how do you think politicians will react to this and do you think that we will subsequently have independents that will put their names forward in next year’s election?

I think that there will be many reactions from some of the political parties, more the member than the leaders. I think that the leaders have to be very cautious because I would hate to be a leader of a political party that says that they’re not going support this bill. Because firstly they’re going against the constitution’s provision. Secondly, it doesn’t give you confidence as a leader of a political party because it means that you’re afraid that people are taking away your vote and I think that this is more in line of advancing democracy. I think that the more we get people to represent the interest groups of people, we’re going to get a much better accountable system and I don’t think that there’s going to be as much a negative reaction as what is expected. I think it might go the other way that there’s going to be unanimous support.

Just as the last question, do you think that this event is a game changer in South African politics?

I definitely think so. I think that this will change the political landscape and will give rights back to the people – rights that we ceded to them and I really encourage the lawmakers, the IEC and everybody not to waste time and to make this as quick as possible. Lastly, why I say this, Gareth (because I’m also a businessperson): when a business is in trouble; fresh legs, new thinkers and accountable responsible people are what’s needed – I think the time has come in this country for new faces, new energy, new fresh legs and new strategies to  take the country into the next decade.

Dr Michael Louis, it’s been an absolute pleasure talking to you today, thanks for telling us about this.

Thank you for the opportunity, goodbye.