New Electoral Act ‘taking away power from people’

A court challenge relating to the Electoral Amendment Bill is looming despite warnings against the move, which could place next year’s elections at risk.

The Independent Electoral Commission (IEC) has already started preparing for the 2024 elections after President Cyril Ramaphosa signed the bill into law this week.

Ramaphosa’s enactment of the bill paves the way for independent candidates to contest provincial and national elections.

ALSO READ: Several Constitutional challenges ahead for newly signed electoral reform law

However, several civil society organisations and opposition parties believe that the new Electoral Act is deeply flawed, and have vowed to challenge the legislation in court even though the IEC warned on Monday that litigation could “imperil” the quality of the upcoming elections.

While the IEC did not indicate whether it will oppose the legal challenge to the new law, the commission called for the matter to be brought and be dealt with by the court expeditiously.

Equal representation

Build One South Africa’s (Bosa) Mmusi Maimane has since confirmed that at least five organisations will indeed challenge the law in the Constitutional Court (ConCourt).

“What is of crucial nature is that again we are taking power away from the people and leaving it with political parties,” Maimane said while addressing the media in Cape Town on Wednesday.

The Independent Candidates Association (ICA) founder, Dr Michael Louis, shared the same sentiments, saying the new legislation was unfair.

“It doesn’t represent equal representation and the provision in the Constitution [states that] everybody is equal before the law,” he said.

Louis said the ICA would approach the ConCourt with an application for direct access.

“We are far in advance with our legal papers, which are envisaged to be served on the 1st of May.”

READ MORE: IEC ‘concerned’ as Electoral Amendment Bill could affect other laws ahead of 2024 elections

Bosa head of candidate recruitment, Mudzuli Rakhivhane, explained that the litigation will challenge the “prejudicial” signature requirements for independent candidates to contest elections and the issue of vacancies in regions, among other matters.

“Traditionally in this country, if a member of Parliament or even someone at local municipality [level] is to vacate their seat then we would have a by-election, but because they have decided to run the provinces as regions, that becomes impractical.

“If an independent candidate vacates their seat instead of running a by-election, you will have a situation where they will do a recalculation and what effectively happens is that every single vote towards that independent candidate will be removed so it’s almost as if all of the people that voted for the candidate do not exist in the recalculation,” she said.

She said this process was unconstitutional because the vacancies arising through resignation or death will be given to bigger political parties.

‘South Africans should be deeply concerned’

Rakhivhane pointed out another problem with the new law relating to independent candidates being barred from aggregating votes.

While the candidates are allowed to contest in multiple provinces, the individual cannot aggregate all the votes that they received nationally even though a political party is permitted to do so.

“If an independent candidate meets the threshold in one province, all the votes they got in other provinces will be discarded so they don’t count for anything.

RELATED: People ‘should definitely be worried’ about Electoral Amendment Bill – analysts

“What’s even more outrageous is if independent candidates are almost close to meeting the threshold in every province, they won’t get any seat.

“Parliament has adopted a system that benefits political parties and is prejudiced against independent candidates… even South Africans should be deeply concerned about a system that throws away their votes,” Rakhivhane continued.

Maimane added they are challenging the new act at this point to avoid the elections being declared unconstitutional post the 2024 polls if the court were to rule in favour of the organisations.

Sunset clause

Furthermore, Louis said government itself did not believe that the legislation was in line with the law due to the fact that a sunset clause was included in the Electoral Amendment Bill.

Parliament agreed to have a provision in the bill, which will see the establishment of a panel of independent experts to look into the reform of South Africa’s electoral system after the next year’s elections so that any recommended changes can be introduced before the 2029 elections.

READ MORE: Panel required to submit report on electoral reform a year after 2024 polls

The panel will be appointed by Home Affairs Minister Aaron Motsoaledi.

Louis, meanwhile, also said he believed the legal action would not disrupt the preparation of the elections.

“The unfortunate issue is that we don’t expect a judgment before October this year because that’s how long it’s gonna take to file papers and all that, but to be honest I don’t think it should inhibit the IEC to do their work,” he said.