The constitutional court ruling on the Electoral Act has been met with enthusiasm; however, there is a possibility this enthusiasm could be short-lived. New Nation Movement (NNM) along with three other applicants namely: Chantel Revelle, GRO and Indigenous First Nation Advocacy SA (IFNASA) argued successfully in the High Court of South Africa for independent candidates to run for political office. According to the official report, “an argument advanced by all four applicants was that the Electoral Act is unconstitutional for unjustifiably limiting the right to stand for public office and, if elected, to hold office conferred by section 19(3)(b) of the Constitution. Also, some applicants submitted that the Electoral Act infringes their right to freedom of association protected by section 18 of the Constitution”. On 11 June 2020, the Constitutional Court ruled that the electoral act is indeed unconstitutional. Without going into the specifics of the case, the ruling was welcomed by policy analysts in the political domain and has received rave social media reviews.
We commence by attempting to understand the motivation behind the appeal, looking at some of the applicants and their petitions. Indigenous First Nation Advocacy is a group that aims to bring to light the struggles of those classified as Coloured; the decedents of the Khoi and San people. The group advocates for those historical communities neglected by policymakers. They argue that current narratives of ‘black and non-Africans’ are used to identify all other tribal groups except those of ‘coloured’ descent in South Africa. New Nations Movement is a non-partisan organisation that roots itself in inclusive politics. Chantel Revelle is a decedent of the Khoi and San royal family and has been fighting for the recognition of Khoi and San people. She intends to mobilise the citizenry to manoeuvre the political discourse to higher forums, including Parliament. From these three out of a total of four applicants, we see that the main goal is to foster participation by these organisations that represent the marginalised voices, who are often neglected by the government. The Concourt decision is a significant win for the democratic process for this very reason mentioned above. However, we must still look at the possibilities of its failure or success equally.
Beyond the honeymoon period of the ruling, there is a need to continue with critical engagements on what this could mean for South Africa’s electoral process. South Africa’s democracy is relatively in its infancy stage and is proving to be quite fragile. The multi-party system, which is seen as a response to apartheid hegemony, is still riddled with complexities and failures. The current electoral system provides people very little power to hold leaders accountable, and this is a sad state of affairs considering that the many voices in Parliament have not been adequately representing the needs of the majority, the poor, the working class, women and marginalised genders.
South Africa’s Socio-Political Governance Landscape
South Africa apartheid history and young democracy combine for a unique political culture. In the political reality of the apartheid and democracy there has always been a linear representation of parties, the NP and ANC respectively. The ANC becomes the first political party to see its hegemony cracked in South African politics. There is no other way to explain the ANC’s political support outside of South Africa’s history of oppression. The historical trauma of the majority is one of the primary reasons voters use to dedicate commitment to a vote.
A psychological theory termed Affect theory suggests that emotions are primary factors in decision making and behaviour. Scholars such as Sarah Ahmed suggest that political agendas have exploited emotional states of people to gain support. For instance the common anxiety of extinction in Western society has wide spread political consequence. Affect theory refers to the political work of emotions of the collective psychology. It is amongst the latest theoretical technologies in marketing; to appeal to emotion in a way that encourage consumption. To offer a short analysis the affective economies that are both created and exploited during voting seasons. Political parties in South Africa take advantage of a wide range of collective emotions/affect in campaigning. Above all a party must be able to provide a sense (real or imagined) of victory. The ANC harvests victory as affect from the post-apartheid era, the DA from its promise of diversity and the EFF from unfulfilled promises of democracy. Independent candidate would have to appeal to South Africans in a way that would command support. From a marketing perspective this would be an expensive task; especially outside of an existing campaigning structure. Independent candidates would likely struggle to contest the political culture.
The Role of Independent Candidates in Electoral Processes
South Africa is not the only country that has declared the ban on independent candidates unconstitutional. In Lesotho, independent candidates have contested elections from as early as 1965, with recent elections faring just as unsuccessful as the first without winning a seat. Lesotho has seen a variety of independent candidates but lacking a sufficient number of votes to secure seats in Parliament. Independent candidates can always run for office, but there is very little evidence to suggest a significant impact can be made in countries that run on majoritism. Lesotho has had no significant effect as a result of its Electoral Act. The challenges for a political seat and subsequent influence do not end with the Electoral Act, however. Each county’s unique social, political and economic position will affect the ability of independents to influence change.
The next step is for government to consult with the IEC to review the electoral act. This consultation will look at possible electoral changes and models that could be adopted. The IEC has already offered it assistance to parliament; the proposed consultation would explore possible electoral changes best suited for South Africa unique situation. The country currently uses a proportional representation this means parties choose individuals to fill seats which they have won. The proposed change is that South Africa should adopt a mixed system. The key argument is that the proportional representation system reduces accountability and the mixed method would foster accountability on constituencies.
Countries that do allow independents to impose restrictions to separate enthusiasts and extremists participation from bona fide candidates. States impose commonly impose restrictions for, for instance, a signature restriction, which requires a minimum number of signatures as a prerequisite to registering as a candidate on the ballot. Others impose a deposit restriction as a way to financially discourage independents, which could be an inappropriate option to impose in South Africa. Given the existing inequalities in South Africa, the financial exclusion for independent candidates would discourage a large portion of the population
Assumptions of the appeal
The four applicants who lodged the complaint had to do so by resting their arguments on several assumptions. Firstly the assumption of goodness; there seems to be a narrative of goodness around independent candidates. The idea is that this recommendation will encourage ‘good’ citizens to run for office to increase government accountability. Revel has been reported as having said ‘independent candidates are the only way to restore righteousness to parliament’. As soon as independent candidates, who are likely to be erudite South Africans of great stature and standing in society, are permitted by legislation to run for office, direct accountability to community is expected to increase because they would be serving the nation and not necessarily a particular constituency. The absence of party structures will ensure accountability and feedback to society which is expedited and not delayed as a result of bureaucratised political processes. This would most certainly compel political parties to compete with the independent candidates for relevance. As a result, progressive and better accountability to society will be guaranteed if the political parties wish to remain in contention for positions as legislators.
On the other hand, political parties will also be required to field knowledgeable and competent candidates in areas where there is competition with independent candidates. This would eradicate the current discourse where any party member, irrespective of their competence, finds themselves heading professional portfolios, not because of their capabilities but their political links, lacking the essential technical skills to fulfil their role.
Unfortunately, there is also the possibility of a ‘bad’ candidate. In a democracy as young as South Africa, it is evident that the fragile democracy can be exploited. As such, in the celebration of the ruling, we must now answer the question ‘who can be a candidate?’ Could the candidate be an extremist figure that could have a negative influence on the on-going demarcating project of post-apartheid South Africa or a could it be someone committed to justice and reducing inequalities?
The second assumption made is that the failure of the constitution can be fixed by representation. The ANC, which is considered a black party, has majority seats with several other black parties in parliament. However, the face of poverty remains black and has been solidified post-1994. Numerical representation has not to lead to a commitment to redressing past inequalities beyond parliamentary lip service.
This assumption of representation can only be made if one carries the optimism of winning the minimum required votes to win a seat. With 400 seats in parliament, simple math suggests an independent candidate must secure a minimum of 0.25% of votes. This will vary in number depending on how many people register and show up to vote. We can assume that candidates would require above 30000 to below 47000 votes to win a place nationally. This again still leaves ordinary individuals at a disadvantage since campaigning costs money. The commitment to challenging the Electoral Act is a testament to South Africans need for an alternative. South Africans are merely exploring all possible measures to hold government accountable.
The South African Parliament can never be accused of resting on human value or justice. The Constitution has proven to be less concerned with human value rather than solidifying power for those that have it. For instance, in all the tension faced by the ANC and influential figures such as former President Zuma and President Ramaphosa, power seems to be a central theme. The factional battles within the ruling party have seemingly been power-driven rather than a radical difference in policy. The independent candidates would have to find creative measures to ensure change since they will boast little power to negotiate with. This means the ability to make meaningful change for independent candidates will, unfortunately, require more support.
The political field cannot be naively understood as a moral game. Independent candidates will have to accumulate political, cultural, social and monetary capital to effect any change. It remains to be seen who will take advantage of this electoral change. The undeniable fact is that regardless of who would attempt to take advantage of the proposed electoral amendment success of winning a seat (neither at national or provincial) is still not guaranteed.
The win in the Constitutional Court will have some impact on the electoral procedure. There is not enough empirical evidence to predict the possible outcome of this verdict. Any victory for the democracy should be welcomed and interrogated and must be followed by a series of works committed to the democratic process, integrity and movement accountability. Independent candidates can perhaps offer citizens a new way to claim dividends on their democratic investment. Who will be able to take advantage or explore this new political reality is the mystery? Perhaps those involved in the appeal have prepared themselves for the challenges that are attached to the judgement. This proud moment must not be overshadowed by problems, but rather embraced and celebrated. Those who are committed to meaningful change must critically engage all loses and victories of the South African constitution
Bonolo Makgale is a Programme Manager of the Democracy and Civic Engagement Unit Centre For Human Rights, University of Pretoria. She is a social justice activist with an academic interest in Governance, Politics and Democratisation in Africa. She writes for DDP in her personal capacity and her views do not represent those of the organization.