The Electoral Amendment Act is being challenged to ensure a fair and just election process takes place Photo Twitter/ @IECSouthAfrica
South Africa – South Africa finds itself at a pivotal moment in its democratic evolution. The recent legal proceedings concerning the Electoral Amendment Act have raised a fundamental question: is the proposed new electoral system truly in accordance with the constitution? As the possibility of a significant transformation in the electoral system looms and with elections approaching, the urgency of this matter cannot be understated.
The Constitutional Court’s landmark judgement in the 2020 “New Nation” case raised significant questions about the fairness of the existing electoral system. The ruling emphasised the need to move beyond the electoral settlement of 1994. It highlighted that South Africa cannot continue with a system where only political parties can participate in elections. Parliament was then tasked to rectify the problems and find a solution.
The complexity of reform
Since the 2020 judgement, parliament’s only solution to this issue was signed into law in April this year. While this system took almost three years to devise there are several challenges to it, explained Angelo Fick Director of Research at the Auwal Socio-economic Research Institute (ASRI). The biggest challenges being signature requirements and the voting thresholds for independent candidates. All of which are being challenged at the Constitutional Court currently.
“The signature requirement, a political party already registered would not require the new signatures and before only required a 1000 and that all new political parties and all independent candidates would have to get 15% of the electoral roll in support of them. That could be up to 15 000 votes in some places.”
The Candidate Association of South Africa (ICA) questioned the fairness of the formula that determines how many votes an individual candidate needs to secure a seat in the National Assembly or provincial legislature. This formula makes it almost impossible for an independent candidate to earn a seat in the National Assembly or provincial legislature.
“It was felt to be unfair because it was almost, if not sometimes more than, double what a political party required. If a political party required 45 000 seats to get a candidate on their list into the National Assembly, that could go up to 54 000 depending on the voter turnout. An individual would need almost double that. Between 80 000 and 90 000. This was felt to be unfair and as a burden on individuals because individuals, no matter how many votes they got, could only get an individual seat in the assembly whereas with political parties, they would get a seat for the number of votes they got and then there is another 200 seats in parliament that are apportioned according to the proportion of the national vote that a party got which of course an individual wouldn’t have.”
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Creating an easy to navigate ballot
One of the other key concerns arising from electoral reform is the potential impact on the voters’ experience. With the possibility of numerous independent candidates, the ballot could become unwieldy. The Independent Electoral Commission (IEC) faces the daunting task of designing a ballot that millions of South Africans can navigate.
“Already there was talk of 98 possibilities on one page of the ballot and then they may have to go to a second page. If all 300 parties currently registered contest and if more independents stand than have stood in the Municipal elections, the ballots could become four to five pages long and this could become difficult.”
There is also a concern about how to educate voters effectively about the changes in the electoral system especially with the potential influx of independent candidates. The upcoming election next year is unquestionably among the most pivotal in the country’s history since attaining its freedom. According to projections, the ANC will find it difficult to maintain the majority vote. In our neighbouring nation, Zimbabwe, as well as throughout Africa, there have been allegations of election rigging, and it is imperative that we take all necessary measures to prevent such occurrences in our own country.
Parliament’s role
While parliament had the opportunity to address these issues proactively, its decision to retain the current system has faced criticism. Many argue that parliament’s choice has protected party privileges and failed to provide a more balanced electoral framework. What would have been better is a “constituency-based system mixed with a proportional representation system”, explained Fick.
“The country could have been divided into constituencies in which the ballots in different constituencies would have looked different and so you wouldn’t have had these 400 or 200 or even 100 names on a ballot. You would have had the individuals who stood in that particular constituency award and your ballot would look more or less at the national and provincial elections the way it does in Municipal elections.”
The Department of Home Affairs has proposed an interim arrangement for the 2024 elections, with the promise of more comprehensive electoral reform in the future. However, litigants argue that this is unacceptable. Those elected in 2024 will then be in charge of overhauling the electoral systems which should rightly concern South Africans, said Flick.
As South Africa grapples with the complex issue of electoral reform, it finds itself at a crossroads. Balancing the interests of political parties, independent candidates, and the voters is no easy task. The Constitutional Court’s role in guiding this process while respecting the separation of powers is pivotal.
The 2024 elections will be a critical moment in South Africa’s democracy. Citizens have the right to demand a fair and equitable electoral system that allows for greater representation and accountability. As the nation navigates this challenge, it remains to be seen how electoral reform will shape the future of South African politics.
Angelo Fick discussed with Julie Alli “joker parties” and how measures are in place to ensure a smooth and unmuddied election takes place. Listen to that discussion here:
