Several Constitutional challenges ahead for newly signed electoral reform law

Civil society organisations have vowed to fight tooth and nail against a law promulgated yesterday by President Cyril Ramaphosa which claims to expand electoral participation but, critics claim, does the opposite by strengthening big political parties and making it almost impossible for independents to get into parliament.

Ramaphosa signed into law the controversial Electoral Amendment Bill (EAB), triggering fierce opposition from Build One SA (Bosa) and organs of civil society – and they are now gearing up to challenge the new legislation in the Constitutional Court.

Electoral Amendment Bill ‘a significant milestone’

Ramaphosa has described the passage of the EAB as marking “a significant milestone in the evolution of our democracy, by expanding electoral participation and widening the pool of leadership choice for the National Assembly and provincial legislatures”.

The Bill presented “a development that can only enrich and sustain our growing constitutional democracy”.

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The law was drawn up after the Electoral Act of 1998 was declared unconstitutional for stipulating election to the National Assembly and provincial legislatures may only be attained through membership of a political party.

He said: “The amended Electoral Act now provides for the inclusion and nomination of independent candidates as contesters to elections in the National Assembly and provincial legislatures.”

‘Unreasonable, unfair and unconstitutional’

Bosa head of candidate recruitment Mudzuli Rakhivhane said: “We reject the new law… The president has signed a law that makes it nearly impossible for independents to stand alone, win elections and ultimately represent their communities.”

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The law, said Rakhivhane, was “unreasonable, unfair and unconstitutional” on the grounds that it allowed for:

• The limiting of seats for independent candidates to 200 in parliament;
• Onerous threshold requirements for independents to stand for election; and
• Vacancies in parliament arising through resignation or death to be given to bigger parties.

Rakhivhane said: “Despite being fully briefed on the dangerous implications for our democracy, President Ramaphosa has signed into law the fundamentally flawed EAB.

“We note and support the decision by a grouping of civil society organisations to challenge the Bill in the Constitutional Court.”

While welcoming the introduction of independent candidates into the electoral system, Inclusive Society Institute (ISI) chief executive Daryl Swanepoel said the law “falls short and will not pass the rationality test”.

“It cannot be right that an independent candidate can stand in all nine provinces, but will not be allowed to aggregate the votes, while a small party may do so.

“It is quite conceivable that independent candidates and small parties may have the same number and distribution of votes across the country, but due to the aggregation rule, the independent could be excluded, while the party could gain some seats.

“That must go against the constitutional principle of equality.”

The ISI was weighing legal options, being “morally and ethically obliged to challenge the unconstitutional law”.

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The Congress of South African Trade Unions said the Act “meets the directive set by the Constitutional Court judgment”.

Its parliamentary coordinator, Matthew Parks, said: “The minimalist approach of the Act is a correct one as it meets the requirements of the judgment, retains the positive aspects of the existing proportional representation system and allows for independents to stand for parliament and the provincial legislatures.”

– brians@citizen.co.za