2024 polls could be delayed as legal action looms against Electoral Amendment Bill

The Independent Candidate Association (ICA) has signalled its intention to have the Electoral Amendment Bill declared unconstitutional once it is enacted.

In an opinion piece published on BizNews, ICA founder Dr Michael Louis said on Tuesday that he still believed that the bill was flawed even though the National Council of Provinces (NCOP) made further changes to the bill.

NCOP’s proposed amendments included a clause for the establishment of electoral reform panel as well as changes to the seat calculation formulas and signature support requirements. 

“This is because public participation is limited to the additional amendments and not the full draft,” he said.

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“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 20 year journey for real electoral reform be diluted in the jug of political opportunism.”

The Portfolio Committee on Home Affairs last week resolved that the bill, which was introduced to amend the Electoral Act to allow independent candidates to contest elections, should make way for further public consultation.

This has prompted Parliament to apply for another extension – until February next year – in order to finalise its work on the bill since the committee won’t be able to meet the 10 December deadline.

“The practical consequence of these important amendments proposed is that the bill has had to be referred back to the National Assembly for consideration. As a consequence, it will not be possible to pass the bill by 10 December 2022 and it is, therefore, necessary to seek a further extension of the suspension period to 28 February 2023,” Parliament’s spokesperson, Moloto Mothapo said in a statement on Tuesday.

Direct access

Meanwhile, Louis said the ICA will approach to the Constitutional Court (ConCourt) with an application for direct access.

“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,” he continued.

The litigation could see the 2024 elections pushed back by few months since the Independent Electoral Commission (IEC) needs 18 months to prepare for the polls.

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“With an extended election time, according to the Constitution the latest we could have a election is in August 2024.”

Several civil society organisations have argued that the bill does not go far enough in allowing for a mixed electoral system, that makes provision for both a single-member constituency and a proportional representation (PR) system in order for voters to hold politicians accountable.

The organisations have argued that the bill was unfair and will put the upcoming elections at risk if it is not changed.

Clause 23

Clause 23 is a provision, proposed by Department of Home Affairs, in the bill for the establishment of a panel of independent experts to look into the reform of South Africa’s electoral system after the 2024 elections.

The panel – which could possibly start with its work in 2023 – will be tasked to investigate whether reforms are necessary to the electoral system; the possible options for reforms; and the potential advantages and disadvantages for each option identified, according to the clause.

It must also submit a full report, with its findings, to Home Affairs Minister Aaron Motsoaledi within 12 months of the date of the elections.

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