Contempt of court fears as public input needed on Electoral Amendment Bill changes

Parliament’s Portfolio Committee on Home Affairs has been advised to apply for an extension in order to finalise its work on the Electoral Amendment Bill.

The committee met on Wednesday to deliberate on the new proposed changes to bill.

The National Council of Provinces (NCOP) on Tuesday passed the bill after the Select Committee on Security and Justice approved legislation with the new amendments, which included a clause 23 electoral reform panel as well as changes to the seat calculation formulas and signature support requirements. 

Clause 23

Clause 23 is a provision, proposed by Department of Home Affairs, in the bill for the establishment of a panel of independent experts to look into the reform of South Africa’s electoral system after the 2024 elections.

The panel – which could possibly start with its work in 2023 – will be tasked to investigate whether reforms are necessary to the electoral system; the possible options for reforms; and the potential advantages and disadvantages for each option identified, according to the clause.

It must also submit a full report, with its findings, to Home Affairs Minister Aaron Motsoaledi within 12 months of the date of the elections.

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

This is not the first time there will be discussions on the country’s electoral system.

Motsoaledi, in February 2021, appointed the ministerial advisory committee (MAC) following a Constitutional Court (ConCourt) ruling that declared the Electoral Act unconstitutional.

The MAC recommended a system that combined both a mixed single-member constituency and proportional representation (PR) system.

However, the ministerial committee’s minority proposal, which relies solely on a PR system, was chosen by Motsoaledi and his department.

‘Absolute clamour’

On Wednesday, Motsoaledi made a detailed presentation to Portfolio Committee on Home Affairs about the clause where he took a dig at civil society organisations, who have called for a complete reform of the electoral system.

“Remember after debate in the National Assembly, we made it very clear that this bill is answering one question about the issue of independent candidates.

“But from the public, there is absolute clamour for electoral reforms and our answer was this electoral reforms will happen after the 2024 elections because they need so much time.

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

“Even if we started the very same day of the Constitutional Court ruling, we could still not effect electoral reforms within 24 months,” he said.

The minister told members of the committee that the panel had no decision making powers and would only made recommendations to Parliament.

“Parliament will then exercise its constitutional powers to determine the electoral system.”

Watch the meeting below:

‘Due process’

Later in the proceedings, African National Congress (ANC) MP Brandon Pillay, backed by Moleboheng Modise, proposed the adoption of the bill with the changes made in the NCOP.

Pillay argued that the amendments did not require further public input.

“I’m of the view that all of the items that the NCOP has brought to the committee, through the submissions received, are [matters] extensively consulted. I also believe that the discussion around electoral reform and consultation have been done extensively through the public hearings [so] I don’t see a need for us to go to further public consultation,” he said.

However, Democratic Alliance (DA) MP Adrian Roos expressed concern about proceeding with clause 23 without National Assembly’s approval.

RELATED: Electoral Amendment Bill: Parliament deliberates on key issues

“I’m quite surprised to see the proposal that this is fine [and] that it doesn’t constitute a substantial change that needs permission from the National Assembly.

“We have gathered over time that there are potentially certain persons that don’t want this legislation to go through as it is and if we leave any opportunity to oppose us based on process [then] I don’t think it is worth it. So I strongly believe we need to go back to Parliament with these changes and follow the due process of the public participation again,” he said.

Inkatha Freedom Party (IFP) MP Liezl van der Merwe shared the same sentiments.

“My question is how would this panel be any different from the MAC [ministerial advisory committee] that the minister had previously advising him?” she asked.

“I do believe that we should open this clause or new proposal to public to receive comment and so we make sure we do justice to this process.”

Contempt of court

Parliamentary legal adviser Telana Halley-Starkey confirmed that the new amendments would require public consultation.

“The regulations require parties to produce 1 000 signatures to register [however] now with this new amendment that has been incorporated… new parties that aren’t represented in the National Assembly and provincial legislature will not only have to provide 1 000 signatures, but also [meet] the 20% [quota] of the region they were contesting.

“So this changes the dynamic of the bill completely because now you’re looking at a material change of the bill that those unrepresented parties have not had the opportunity on this [amendment],” she said.

“With that said, this leads us into a very troubling position as you know there’s about 12 working days left until the 10th of December. We, therefore, have suggested we apply for an extension as we will be in contempt [of court] if we do advertise the bill.”

Parliament’s legal services department previously said a three month extension would be sought.

ALSO READ: Electoral Amendment Bill: Parliament could apply for three-month extension if necessary

Halley-Starkey also pointed out that the Independent Electoral Commission (IEC) has confirmed that they would not be opposed to any extension.

IEC chairperson Mosotho Moepya said the commission would have to assess what the ConCourt extension would mean on its preparations for the 2024 elections.

“We are not in any way saying there are no challenges before us and the committee [but] we are saying there are going to be consequences that we would have to manage and we would have to see how best manage those consequences in the face of an application that is before a court,” Moepya told the committee.

The committee’s chairperson Mosa Steve Chabane, meanwhile, said he was of the view that the bill be finalised without public consultation since this has already taken place.

The committee is scheduled to meet on Friday for further discussions.

Process

The bill has to be signed into law by President Cyril Ramaphosa by 10 December, but before that can happen, the bill must be adopted again by the Portfolio Committee on Home Affairs, with the new changes.

The draft legislation will then have to be voted and adopted by MPs in the National Assembly for the second time.

NOW READ: Electoral Act changes must pass urgently to avoid constitutional crisis before 2024 polls