‘We are sleepwalking into a constitutional crisis’

Democracy Development Program (DDP), in partnership with Rivonia Circle and the Mail & Guardian hosted a webinar, the Electoral Amendment Bill and the Case for Electoral Reform in South Africa, on 13 October. Joining DDP senior programs officer Sphamandla Mhlongo in this hard-hitting conversation were electoral systems researcher Letlhogonolo Letshele and independent elections analyst Mike Atkins. From the sidelines, the chat feed was a hive of activity — a display of civil society uniting over a deeply flawed Bill.

The webinar started with a video of Valli Moosa speaking, which was repurposed from the Electoral Reform Indaba. He said: “The new electoral system under consideration in parliament should alarm all of us.” Moosa was the chair of the ministerial committee that  examined the process of changing the way we vote.

“It’s a disaster in waiting. It is a completely new electoral system that doesn’t exist anywhere else in the world … This proposed system goes against the principle of proportional representation, because what it does, when an independent candidate in the Eastern Cape gets 500 000 votes, about 450 000 of those votes will be discarded, will be thrown away  … Trying to read it, [even] the people who plan to vote for this Bill don’t understand it.”

Letshele said three fundamental flaws have been highlighted to the portfolio committee but have been ignored:

The Minister of Home Affairs ignored the majority view of the MAC.

The public participation process was inadequate.

The Bill contradicts the constitutional court’s ruling.

Atkins called the Electoral Amendment Bill “a constitutional disaster zone”, with the key being how the quotas are made up. Using spreadsheets he demonstrated various scenarios. At issue is that an independent candidate only gets one seat, regardless of how many votes they get — the superfluous votes are divided up, with the largest party necessarily granted the majority of those seats. In other words, voters’ integrity is compromised — your vote won’t necessarily count towards the ballot you ticked.

How did it get to this state of calamity? Letshele explained that on 11 June 2020 the “constitutional court ruled that the Electoral Act is unconstitutional to the extent that it prevents adult citizens from standing for, and being elected to, the National Assembly and Provincial Legislatures as independent candidates”. Parliament was ordered by the court to fix that issue within 24 months but did not prescribe the type of electoral system. The ministerial advisory committee (MAC) on the electoral system was formed in February 2021, and by June 2021 it had compiled a report offering a choice between a minority (adding independent candidates to the existing system) or majority system (having a hybrid system of PR and constituency-based). Nearly a year later, in January this year, the Electoral Amendment Bill was introduced to the Portfolio Committee of Home Affairs.

Mahomed Farouk Cassim commented: “This Bill certainly has no prospect of achieving constitutional muster. Once again, time is going to run out as it did in early 1994. So, what can we do? We need to be smart. If the political parties are united in going ahead and approve this Bill, South Africans must consider the creation of conjugated parties or notional parties where independent candidates can have their cake and eat it: they can be an entity or independents by choice to meet each circumstance … The way out is to create a notional party to which independent candidates can belong … A strategic and innovative approach is needed to fly over the hurdles and land in the right place.”

As the process is already more than six months behind schedule, amid widespread and growing civil action urging President Cyril Ramaphosa not to sign the bill, Atkins pointed out the contradiction that the 2024 election cannot be postponed, but it also cannot be held unless there is a constitutionally sound election system already in place. “We are running out of time. We were in a mess a year ago … now we are at near meltdown status,” he said.

The IEC also needs at least 12 months for the logistics of running a free and fair election. If they go ahead with the proposed amended bill, by the time it will be heard at the concourt — because it will be challenged — the process will be delayed even further.

Atkins proposed that maybe the best option is to overlook the errors of the Electoral Act and tweak it so that it is “fair enough” as a once-off for the 2024 election, adding that the IEC managed to pull off the 2021 local government elections.

Lerato Forere asked: “If the IEC as an institution we trust to analyse and mould how the parliament amends the electoral reform, is it misleading the affiliated parliamentary committee, and who can the public turn to? And how? Would class action work?”

Addressing how to bring the message to the people, Mhlongo agreed that the Bill was very complex but that it was crucial to inform people that the government is changing what our vote means in defiance of democracy.

“We are sleepwalking into a constitutional crisis,” Atkins said. He suggested that a working group could be established to engage directly with the IEC to thrash out the flaws. Part of the problem, he said, is that the conversation is one-way and only happens after IEC recommendations are presented to parliament.

At this point the chat feed exploded with suggestions and calls for Atkins to lead such a working group. Volunteers put up their hands to participate, with Nhongo Solo posting: “I agree with [Atkins] that a working group must be established asap. Can he facilitate that practically or can [Mhlongo] do that?”

This was civil society in action, in real-time, networking while meeting for the first time.

Felicity Harrison posted: “The Institute for Justice and Reconciliation would be happy to assist with convening the working group that Atkins mentioned,” which a number of members from the audience responded to positively.

Susan Buekes commented: “I admire the work you are doing, and the time you are devoting to this matter. You have my full support. Maladministration is seen at every level of government in this country. It affects every citizen, but only a small proportion are fighting it.”

Cassim added: “We must see possibilities where none seem to exist and thereby get to the destination we seek to reach.”

Solo said: “Let’s debate afresh. I agree that the issue is not just about the 2024 elections but more about the future system.”

Atkins reiterated that each vote has equal value regardless of status, wealth or circumstances, and that the moment of casting our votes at the ballot box is “sacred”. Reforming the electoral system is not about politics, he said, but rather about protecting our hard-fought for democracy.

Mhlongo described some of the actions that the DDP has undertaken as well as announcing their people’s hearing taking place in Durban on 2 November. “Electoral reform is also about the ability of citizens’ voices to be heard at all levels of government.” Mhlongo added that citizens must find out who their ward representative is and call them.

We can add our voices to social media and the growing number of activists in various groups, including Rivonia Circle and Defending our Democracy. The pressure is mounting on Ramaphosa, who has to make his decision on 10 December; he must  not waste any more time.

One person, one vote, of equal value.

Watch a recording of the webinar here: