Proposed electoral Bill is ‘inconsistent’, warns elections analyst

Although it is almost two years since the Constitutional Court ruled that the Electoral Act amendment must allow for independents to be parliamentarians, the overall problem in the legislation has not been addressed.

Elections analyst Michael Atkins said independent candidates would still be disadvantaged by the proposed amendment before parliament.

But both the ANC and the Democratic Alliance, as ruling parties nationally and in the Western Cape respectively, stood to benefit from the legislative set-up as they could win seats with between 45% and 47%.

This was because the biggest parties would get the highest number of votes at the expense of independents, whose extra votes would be divided among the big fellows.

He said the fact that parties and individuals would be on the same ballot would inevitably result in parties having a higher seat share than vote share.

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“It is almost certain a party obtaining 45%-47% of the vote would receive a majority of the seats in that election. Our constitutional requirement is that the electoral system must result ‘in general, in proportional representation’ (PR) [being] violated,” Atkins said.

Evaluating both reform proposals contained in the Electoral Amendment Bill and a submission by the Electoral Commission of South Africa (IEC), Atkins said separate PR and constituency ballots were required to meet the constitutional imperative with respect to proportionality.

While the second ballot proposed for the National Assembly would address the proportionality problem there, it was necessary to do the same for provincial legislatures.

He suggested two ballots for the National Assembly and two for the legislatures would work. Of the two ballots, one would be for PR and another for constituency.

According to Atkins, the proposal for a second ballot in the National Assembly was presented as a relatively inconsequential change when it was not.

“It has a very large effect on the logical structure of the election, on voting choices and on how parties and independents contest the election. Certainly, it would require further public consultation,” he said.

The second ballot, while needed, opened the way for constituencies to be much more localised. Once there was a second ballot, there was no reason to keep constituencies at the provincial level.

“Apart from being confusing for voters, there is no reason to prefer this over smaller constituencies,” he said.

Currently, the system provided for one ballot for the National Assembly and one for the provincial legislature in which the voter was registered, which is retained in the Bill.

In terms of the Bill, independent candidates contesting for the National Assembly would appear only on ballots in their provinces.

But, in its submission, the IEC proposed the retention of a single ballot for provincial legislatures but two ballots for the National Assembly.

The first ballot would have parties only and the second would be the regional “constituencies” (the provinces) where parties and independent candidates were listed).

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Atkins said the IEC proposal would solve the constitutional problems relating to proportionality for the National Assembly, where the Bill resulted in parties having a higher seat share than vote share.

With an explicit PR vote, the issue goes away.

However, this did not address the equivalent proportionality problem for provincial legislatures.

“The Bill is inconsistent. You can’t mix individuals with proportional representation, who are political parties. The seats of independents get split among parties.”