South Africans cast their votes at the Joburg City Hall voting station on 1 November 2021. Picture: Michel Bega
Parliament’s Electoral Amendment Bill continues to be deliberated on with a number of issues being raised by organisations.
The Portfolio Committee on Home Affairs, which has been tasked to amend the Electoral Act 73 of 1998 to allow independent candidates to contest elections and to substitute Schedule 1A among others, met on Tuesday, to discuss the public submissions it received on the Bill last week.
In the submissions, some organisations indicated that they were of the view that the number of signatures required for independent candidates was “too high”, “unfair discrimination” and limited their right to contest elections.
Independent candidate must confirm that he or she has submitted names, identity numbers and signatures of voters who support the candidate totaling 30% of the quota for a seat, according to the Bill.
This could amount to 12 900 if previous election results are used.
To address this issue, the organisations proposed that the number of signatures should be same as the 1 000 signatures required for political parties or that political parties must also provide 30%.
Parliament’s legal services advisor, Siviwe Njikela provided the committee with a legal opinion on the matter, saying the quota set for independent candidates should be reasonable.
“When we consider the case of Richter v Minister for Home Affairs, the court stated that electoral law must aim at enfranchisement and not unduly restrict the rights of citizens to vote and stand for elections,” he told MPs.
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Njikela said while the Department of Home Affairs also agreed that the quota was too high, the department pointed out that it was important to establish that where a provision differentiates between independent candidates vs political parties.
The differentiation must bear a rational connection to a legitimate government purpose.
“Again this is what we told the committee many moons ago,” the legal advisor said.
He pointed that the signature requirement may be necessary to determine the seriousness of an independent candidate to contest an election as well as to avoid a lengthy ballot paper.
However, the signature requirement should not be a barrier to stand for elections.
“I think we did say in our last presentation on the issue, we had said one could say that given the [financial] muscle and the mass mobilisation structures that parties have, this differentiation may seem to be unfair,” Njikela continued.
On the matter of of deposits required, Njikela said this issue should be left to the Electoral Commission of South Africa (IEC) to regulate as already stated in the Bill.
“The reason why the amount of the deposit was left for the commission to determine is because this amount can change over time and it is then always easier and faster to amend the regulations as opposed to having such amount put in an Act which then has to undergo the entire longer legislative process to amend,” he explained.
The proposed changes in the Bill to Schedule 1A of the Electoral Act include that vacancies for independent candidates are filled through a recalculation and that candidates contesting in more than one region cannot aggregate their votes.
Schedule 1A is a system of representation in National Assembly and provincial legislatures.
Njikela said the issue of vacancies via a defective recalculation was complex as the Bill states that one political party cannot be replaced with a different party if a party loses its seat via a recalculation.
This also applies to independent candidates.
Organsations in their submissions had argued that the recalculation would favour larger parties and called for a by-election to be held instead.
In their view, Njikela advised that the vacancies in National Assembly and provincial legislatures must be filled in line with the Constitution.
READ MORE: Political parties want to amend Electoral Amendment Bill as interim report adopted
“There is no doubt about that,” he said during the presentation.
The legal advisor further highlighted that the IEC had already said that by-elections was not practical as it was too costly.
“IEC further advised that to reserve as seat for an independent candidate (if an independent candidate vacated) or a member of a party (if a member of that specific party vacated), could risk a seat being allocated in an unfair manner which could offend the principle of vote of equal value,” Njikela added.
Another issues raised about the Bill in the submissions was the discarding independent candidates’ excess votes cast in other regions, which do not meet the highest figure limits proportional representation.
Some organisations proposed a solution to this by recognising current municipality districts and metros as constituencies instead of the country’s nine provinces as regions.
They were had said that discarding of votes was against the will of the electorate.
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“What is being raised relates specifically to the issue of independent candidates contesting [elections] in multiple regions.
“And in our response we explained in detail that an independent candidate cannot occupy more than one seat at a time.
“Once the minimum number of votes required to secure a seat is determined all additional votes may not practically be utilised for somebody else because those voters would have chosen [a specific person] to be their representative,” Njikela said.
Regarding the aggregation of independent candidate votes across regions, some organisations were of the view that this would be unconstitional as it would prevent candidates from meeting the requisite vote-threshold in order to obtain a seat.
The organisations also argued that this would violate the proportional requirement as the total votes cast will not be reflected in the total seats allocated.
“[The issue was that it] violates the right to equality as political parties are awarded seats based on all votes received but not independent candidates,” Njikela further told MPs.
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Njikela said Parliament’s legal services had advised the committee on the limitations of the rights of independent candidates.
“Therefore, the question is what is the purpose behind preventing an independent candidates from aggregating its votes.
“Why would an independent candidates be allowed to contest more than one region for an National Assembly seat but only the votes of one region meeting the threshold are taken into account for a seat and not the votes obtained in the other regions.”
There was also problem on the Bill proposing that only half the seats (200 regional seats) can be contested for by independent candidates and that the candidates cannot contest the compensatory seats.
They argued that the total 400 seats would not reflect the total votes cast whether for independent candidates or parties and this violates the proportionality requirements.
“This issue has been firmly before the committee and a decision was made on the 200 seats.
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“But in our response, it has been explained to the committee that the Bill does reflect the constitutional requirement of general proportional representation.
“Although proportional representation is a requirement that is not exclusively for political parties, it is practically difficult to provide for proportional representation with independents as they can only hold 1 seat, even though they may receive more votes than a political party,” Njikela said.
“To allow independent candidates to contest compensatory proportional representation seats would distort the proportional representation requirement and also run the risk of the National Assembly seats being unfilled,” he concluded.
The IEC and Department of Home Affairs also provided their views on the submissions.
Addressing MPs, Home Affairs Minister, Aaron Motsoaledi said the proposed revisions to the Bill demonstrate that “there has been serious effort by the committee to consider the comments made by the public” as well as the IEC’s proposals.
“The Portfolio Committee has itself debated the issues, and in the a-list has adopted substantially revisions to the Bill. I think it is a very important statement to make because their are some people who believe their inputs are being ignored,” Motsoaledi said on Tuesday.
Portfolio Committee on Home Affairs has adopted an interim report on the Electoral Amendment Bill despite some parties opposing parts of the proposed legislation.
The committee, which adopted an interim report last month, has asked the National Assembly for permission to broaden the scope of the Bill since substantive amendments were made to it.
It has until 10 December 2022, to complete its work after was granted a six-month extension by the Constitutional Court (ConCourt) in June.
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