Cabinet can expect legal action for ignoring Zondo’s recommendations on accountability

Cabinet deliberately ignoring recommendations by Chief Justice Raymond Zondo to change South Africa’s constitution and allow for the president to be directly elected will open a can of worms for a lot of litigations from civil organisations, according to political analyst Dr John Molepo.

Accountability is key

In the final part of the State Capture Report, Zondo said this was fundamental for stronger accountability and expressed concern over the electoral system, arguing that people may have wanted to vote for the ANC, but did not want Jacob Zuma as head of state.

“[This is] aimed at ensuring that anyone who becomes president of the country does so on the basis of their own popularity with the people, not on the basis that, if voters vote for a particular party, that party will make him or her president,” he noted.

Molepo said the Bill in its entirety does not serve its purpose of parliament giving power to the people – “which shows that although this electoral reform was recommended as a way to end corruption within government, Cabinet ignored this deliberately”.

‘A mix of constituency base and proportional base system’

However, Defend Our Democracy’s spokesperson Duduetsang Mmeti said while they weren’t necessarily pushing for that kind of electoral system, the Bill, which was passed on Thursday, in its current structure and format was unfair and unconstitutional.

“We’re pushing for a mix of constituency base and proportional base system, so we agreed to an extent with what President Cyril Ramaphosa said,” Mmeti said.

“What the commission is recommending is not something feasible, particularly because this means there would be several really difficult amendments done to the constitution as well as to the electoral amendment goal.”

Mmeti said come 10 December and the president decided to pass the Bill, then the civil society groupings would consider legal recourse.

Ramaphosa’s response

In his response, Ramaphosa said it was necessary to await the finalisation of the Bill before determining whether it satisfied the concerns raised by the Zondo commission.

“Since the recommendation for the direct election of the president would require 60 constitutional amendments,” he said.

“It is a matter that should be considered by the various political parties represented in parliament and by the parliament’s joint constitutional review committee.”

Bill rejected

Build One South Africa (Bosa), the South African Institute of Race Relations, and Thabo Mbeki, rejected the Bill – with the former president criticising the ANC for putting its own interests above democracy.

“When the matter was discussed at the national executive committee (NEC) not long ago, you have members of the NEC of the ANC saying we must write the electoral law so the ANC wins,” Mbeki said at the annual general meeting of the Strategic Dialogue Group.

“Comrades cited examples to reinforce this point. How can the ANC design electoral policy so that it wins? ANC must design an electoral policy to advance the democratic revolution.”

Bosa leader Mmusi Maimane said members of parliament rubber-stamped a government-sponsored Bill which made it near impossible for independents to stand alone and win elections.

“This is in contrast to the spirit of the New Nation Movement order by the Constitutional Court in June 2020, which found the Electoral Act to be unconstitutional,” said Maimane.

“Due to parliament’s errant behaviour, it is back to courts. We note and support the decision by a grouping of civil society organisations to challenge the Bill in the Constitutional Court, applying for a declaration of invalidity.”

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