Proposed changes to electoral law in South Africa: Implications for Political Parties

By: Norah Msuya

The Congress of the People (Cope) leader Mosiuoa Lekota has recently published an explanation of the new Electoral Laws Amendment Bill which he plans to table in Parliament.  The primary aim of the bill is to give effect to the June 2020 Constitutional Court ruling which found that the country’s Electoral Act is unconstitutional as it does not provide for adult citizens to be elected to the National and Provincial Legislatures as independent candidates. This historic moment will give effect to democracy by paving the way to all South Africans to stand as individuals and bring change to their nation.  Hence the independent candidates not affiliated with any political party may now contest in elections for national or provincial office. Prior to the ruling, only members of political parties could contest in national or provincial polls, while independent candidates could only contest for office in local government elections.

South Africa has operated under a proportional representation (PR) system for the entirety of its democratic project where voters select parties that will represent them in Parliament. The 400 seats up for captures are then dispersed in proportion to the election results. In contrast to self-explanatory winner-takes-all systems, this guarantees the protection of minority interests. For stance in the 2019 balloting, a mere 0.18% of the vote was sufficient to earn both Al Jama-ah and the Pan Africanist Congress a literal seat at the table.

Although the current electoral system is considered to be broken, the law was instituted during the founding of democracy for a specific purpose and under unique conditions. It was enacted while the prospect of a legislature mirrored the population dynamics of those it served particularly appealing to a country looking to heal after decades of violence and racial discrimination policies. The implementation of a PR setup never looked to be in doubt when the fundamentals of the electoral system were debated at the Convention for a Democratic South Africa (Codesa) in 1991 and solidified at the Multiparty Negotiating Forum in 1993.

The Landmark Judgment of Constitutional Court

on 11 June 2020 the Constitutional Court, in the case of New Nation Movement (NPC) and Others v President of the Republic of South Africa and Others (CCT110/19) [2020] declared the Electoral Act of 1998 unconstitutional because it prevents independent candidates from running for public office. The case was bough to Court by NPC and three other applicants, the Chantal Dawn Revell, GRO  and the Indigenous First Nation Advocacy SA PBO. The respondents were the office of the president, the minister of home affairs, the electoral commission as well as the national assembly speaker and the national council of provinces (NCOP).

The central question before the Court was whether it is constitutionally permissible to prevent eligible South Africans from standing for election if they do not belong to a political party. The applicants’ arguments in the matter centred around the view that the right to stand for office in terms of section 19 (3) of the Constitution is unjustifiably infringed by requiring candidates to run through a political party.

The Court agreed with OUTA’s arguments that the requirement that the National Assembly and Provincial Legislatures must result “in general, in proportional representation” and that sections 46(1)(d) and 105(1)(d) Constitution does not mean exclusive party proportional representation. The Court went further and provided that the proportionality can come in many forms and can include both party candidates and independent candidates.

The Court accepted that the proportional representation system used in South Africa does allow for independent candidates to run for public office. Section 157 of the Constitution creates an internal limitation because it requires that members who are elected to municipal councils must be drawn from party lists. However, if the Constitution had intended to exclude independent candidates from the electoral system, such a requirement would have been expressly stated in section 46 and 105 of the Constitution. As OUTA put forward, this is not an isolated occurrence in the Constitution as there are many examples of “intra-constitutional curbs on the full effect of certain provisions of the Constitution”. In light of this section, the right to stand for office must apply “in every instance where the Constitution has not specified a system of representation different to what section 19 requires” regarding the right to stand for office.

The Constitutional Court has described this matter as of utmost importance because it “delves into the right to vote and its possible limitations”. Justice Mbuyiseli Madlanga ruled that provisions Electoral Act insists that citizens can only vie for national or provincial political office when they are members of a political party are unconstitutional. He gave Parliament 24 months to amend the electoral law. The right to elect and to be elected into public office is an essential characteristic of our modern democracy. The discontent with political parties in South Africa has inspired some individuals to want to run as independent candidates in elections. This would afford them the opportunity to contribute to bringing about the changes they wish to see outside the limitations of belonging to a political party.

The Electoral Amendment Bill

The bill will amend The Electoral Commission Act No. 51 of 1996, to provide for, and to regulate, the registration of independent candidates. It will give full effect to section 19(3)(b) of the Constitution, which provides that every South African citizen has the fundamental right to stand for public office and, if elected, to hold office. It also provides for the creation of constituencies along current district boundary lines and the replacement of the “closed list” proportional representation system with the “open list” proportional representation system with greater requirements for all candidates to uphold the Constitution and to give impetus to the realisation of the Bill of Rights, and Promote democratic governance and electoral accountability.

The bill requires any other relevant legislation to provide for independent candidates to participate in election broadcasts and political advertisements on an equitable basis with political parties. It also provides for independent candidates to receive financial and administrative assistance to enable them to perform their functions effectively as well as providing for related and other consequential matters.

At present, most districts in South Africa are failing dismally and serially with local government being in a perpetual and lamentable crisis. With a district becoming a constituency, a scaffolding of political representation becomes immediately possible in each district. Each district, therefore, will have councillors as well as dedicated representatives serving in the National Assembly and Provincial Legislatures as well. The constitutional requirement for inter-governmental cooperation will also be meaningfully enhanced in this way at once.

Although independent candidates will be allowed to contest for parliamentary and provincial seats, the president will still be elected by members of the National Assembly.  The Parliament has indicated that it will engage all positions on the matter throughout the amendment the process.

Most of the political Analysts establish that voters are unhappy with the performance of the country’s major political parties, which are not directly accountable to them. The dominant political parties include the ruling African National Congress (ANC), which has been in office since 1994 when the country becomes a democracy after the end of apartheid. On the other hand, the  Democratic Alliance and the Economic Freedom Fighters Party (EFF) are the two leading opposition parties with several smaller active parties with representation in the national Parliament and provincial legislatures.

Lecturer and political analyst Tom Lodge pointed out that the ANC, National Party and the Democratic Party all favoured the system for differing reasons. Most importantly, the former had come to accept a party-list approach as the ideal form of its imminent governance. Although constitutional specialist Kader Asmal had once described PR as “the ineluctable need of the racial oligarchy to maintain its power”, those fears had assuaged by the time he presented the option to a 1990 party conference. For the rest of the nation, there was little reason to question an approach that was set to hand full control of the leadership reigns to the ANC.

Impact of proposed changes  to political parties

First, The entry of independent contestants presents mixed fortunes to the parties. It may lead to a drop of the electoral support for existing parties. There is a possibility that their current voters could abandon them for new entrants. This is because some voters are not pleased with the parties, but they usually vote for them as they don’t have alternatives.

Secondly, the changes may herald a greater sense of accountability into the political process. Political parties will be forced to improve their candidate nomination process. They will have to prioritise moral rectitude in the selection of contestants as they will be desperate not to lose seats in the constituency ballot. They will have to work hard to offer candidates that are equally credible as that will be their only recourse.

Thirdly, allowing independent candidates to stand for election may potentially straighten up the balance of power although the extent of that shift is unclear. Ruling the country in the next national election is likely to have ballots which include both the constituency and proportional representation. This might cause the presidential post to have a mixed vote. It is not failsafe that voters will cast both proportional and constituency ballots. A voter who chooses a constituency candidate on the strength of character will not get easy vote blindly on the proportional representation ballot. For the party to get the proportional representation ballot, they will need to have an equally credible list of leaders. While voting for a trustworthy party candidate, voters can spoil the proportional representation ballot as a statement of disapproval against the candidates on the party list.

Fourthly, these amendments may thwart the diversity which was bought together by South African politics. Parties often bring together diverse individuals around common values and surpass primaeval personalities along with promoting overarching civic identities.

Fifthly It is likely that independent candidates will find it difficult to compete with the well-established political parties. There is a big dough that they will not be able to generate the same level of funding for campaigning as political parties, and the length of the ballot paper. The Constitutional law expert Professor Pierre de Vos cemented this view by saying that this will not make much of a difference to the current electoral system. “Parties will remain powerful. It will be difficult for anybody to be elected to Parliament if they are not in a political party.”

Further, the independent candidates will not be able to contest the proportional representation ballots. These can only be cast for political parties. Independent candidates assuming the 400 parliamentary seats are shared equally between constituency and proportional representation, will only contest 200 seats. The fact that parties contest both ballots may cause them to get majority support, enabling them to elect a president from their midst.

Lastly, the amendment may herald a wider choice of contestants to reverse the declining interest in the electoral process.  Statistics indicate that in the 2019 election alone, more than 9 million eligible voters did not register to vote. According to a politic professor of the University of Johannesburg, Mcebisi Ndletyana, The 26,756,649 who registered represented only 74.6% of the total voting-age population. Even among those who registered to vote, only 66% of them showed up to cast their ballot on election day. This was a significant drop in turn-out rate from 73.48% in the previous election. Thus, new candidates into the electoral contest might lure the apathetic eligible voters into the process. Even though the amendment may now bring uninterested voters back into the democratic process, it could also lead to divisive campaigns based on personality.

The increasing and continuing alienation of voters from the political system is detrimental to democracy and the well-being of society at large. It will best serve the interests of every South African and most particularly those who have remained marginalised, neglected and increasingly alienated from the politics of the day. Enabling independent candidates to contest provincial and national elections promises to change various aspects of South Africa’s life.

Dr Norah Hashim Msuya is an academician and researcher. She writes in her own capacity.