ConCourt challenge looms over Electoral Amendment Bill

The Independent Candidate Association (ICA) has announced it is drafting legal papers and will be taking its fight over the “flawed” Electoral Amendment Bill to the Constitutional Court. Founder of the ICA, Dr Michael Louis, writes in the opinion piece below that: “…parallel to this process ICA will be drafting an application for direct access [to the ConCourt], and we already have five other civil society organisations receiving the necessary mandates to act as co-applicants. This process will take a minimum of six months.” The Bill of Rights – which gives any individual the right to stand for public office – is at odds with current legislation stating anyone contesting elections must belong to a political party. In mid-2020, the ConCourt ordered Parliament to remedy the situation within 24 months, but that deadline expired in June 2022. An extension until 10 December this year was granted. But Parliament dillydallied and has had to request a further three months extension to the deadline. Louis says they are just waiting for President Cyril Ramaphosa to sign the Electoral Amendment Bill into law before they launch their court action with a view to having judgment in the matter no earlier than October next year. That’s a mere couple of months before the national elections touted for mid-2024. – Michael Appel


Michael Louis: The key to change in SA is the electoral act

By Dr Michael Louis*

There is no doubt that our collective concern for the state of our democracy is at an all time high. We have a president who has been found to have possibly violated his oath of office and other laws of the land. We have no credible alternatives within the governing party, and all the while the problems of the nation continue to worsen. 

Reflecting on the explosive events of the first week of December 2022,  I was again reminded of the importance of the vote as a safeguard of our democracy. While every citizen might not own their own house, not have access to good education, or not have clean water, but what they do own is the power of the vote, and that vote must be dignified by being given full meaning and effect.

Citizens do not vote for the mere sake of voting; they do so to provide a mandate to the right people to become lawmakers and to hold the executive to account.

However, our system has been deemed to have major flaws which limit the power of citizens to effect that accountability. Our political system is broken and the evidence of that can be seen in how our Parliament failed to hold Jacob Zuma to account for state capture and the Nkandla scandal. This is because, within a closed list party system, the loyalty of members of Parliament has been to those who deployed them, and not to the people of South Africa and the oath they swore as members of Parliament. This was even pointed out by Chief Justice Raymond Zondo when he was delivering the final state capture report.

The Constitutional Court recognised in 2020 that the electoral act was unconstitutional and ordered that it be amended, in the two and half years since then there have been many delays primarily because Parliament wants to retain the old political system.

For the past five years, I have been part of leading those who have been calling for a new electoral system. This is not a new call, but it is one that has been promoted and supported by many statutory commissions as far back as 2003 with the Van Zyl Slabbert report. We are now approaching 20 years of advocacy for electoral reform to fully equip our democracy with the tools for accountability, namely constituency-based voting for our national and provincial elections and the ability of independents to run for seats in parliament and provincial assemblies on an equal footing with political parties.

Transitional arrangement

Our electoral act was always a transitional arrangement and top ANC leaders like Nelson Mandela acknowledged this. The political parties abandoned the pursuit of reform, but impressively civil society organisations took up the fight and are seeing it through to the end. 

Civil society organisations have come together in one voice and demonstrated their disapproval of the current electoral act that is currently being considered in Parliament. Our disapproval is based both on issues of procedure and substantive law. The draft bill process was designed to limit public participation, and to filibuster the Constitutional Court judgment and ultimately the draft bill does not reflect the aspirations of the Freedom Charter, namely that “every man and every woman will have the right to stand in public office.” 

With a 30 months legislative process now completed in Parliament, there are further delays on the road to electoral reform. There has been another application for an extension made to the Constitutional Court. This time the request is for another three months.

We are convinced as civil society that “die koeel is deur die kerk“. We started the legal process in 2017 with a heart for the people of South Africa to have the ability to elect our best 400 national parliamentarians and best legislative representatives in the provinces. Not only by virtue of political parties. Political parties will always have an important role to play in our democracy, and our crusade is not in opposition to political parties. However, we must acknowledge that the representatives of political parties in Parliament have disappointed us. Without competition and without accountability mechanisms which work, our Parliament will remain a fiasco and a circus costing our people billions. 

While political parties are essential to democracy, they have acted in their own interests in this electoral reform process. They have yet to consider the submissions of civil society organisations and taken us seriously. We understand this is a complicated bill. It seems that many of their colleagues have no understanding of the bill. This is something that was pointed out by President Thabo Mbeki and corroborated by Valli Moosa. We should all be worried about this because our parliamentarians are playing a very dangerous game by playing around with one of the most fundamental human rights, the right to vote.  

This is also not a time to play political opportunism. That, too is a dangerous game. To this end, I was disturbed to hear the DA publishing  their intention to submit a motion to Parliament to ask the Speaker in terms of Section 50 to dissolve Parliament and immediately call for another election. The DA knows full well that a new electoral bill has still a long way to go before the president would sign it into an Act. We cannot go into another election before this issue is resolved. 

Flawed 

Furthermore, the Independent Candidate Association (ICA) has formally decided that we will challenge the draft Electoral Amendment Bill now that both houses of Parliament have considered and passed their suggested amendments. We remain convinced that the bill is flawed and even if it is submitted to another round of public participation, the flaws will remain. This is because public participation is limited to the additional amendments and not the full draft. We have formally given notice to our legal attorneys, and have instructed our legal counsel to start preparing papers to challenge the bill once the President signs it into law . This was never our preferred option, but we cannot in good conscience sit by and watch a twenty-year journey for real electoral reform be diluted in the jug of political opportunism. 

We are well aware that legal papers will only be able to be served once the President signs it into law. Civil society remains of the opinion that the President at this time of impasse, is not fit to consider and apply his mind to the constitutionality of the Electoral Amendment Bill and that he refers it to the Constitutional Court to determine constitutionality. 

However, parallel to this process ICA will be drafting an application for direct access, and we already have five other civil society organisations receiving the necessary mandates to act as co-applicants. This process will take a minimum of six months, and with the expected date for Parliament to pass the bill in March , we expect judgment to be no earlier than October 2023. With an extended election time according to the Constitution the latest we could have a election is in August 2024.

It is clear that while the political parties fight, a constitutional crisis is in the making, our focus remains on electoral justice. Justice remains the first virtue of society. We remain committed to the truth , to do the right thing because it is right. Our country and people are in need of order, democracy, rule of law and human rights.

Now it is time for courageous leadership. However, the greatest leadership is not about conflict and opposition. The root of the word courage is  “cor-”  the latin word for  “heart’ . Heart for people, heart for unity, heart for our nation, heart  for providing a home, electricity, education, clean water, and that our families live in a crime-free society. I have always believed that the key to change in our country is the electoral act that will provide the legislative framework for civil society to directly nominate its leaders. 

The fight for our electoral system is larger than ourselves. It’s about survival of our country, the survival of our families, survival of our next generation.

*Dr Michael Louis chairs the Independent Candidate Association (ICA)

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