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

Election experts are optimistic about the passing of the potentially ground-breaking Electoral Act amendments by the November extended deadline, but some foresee a messy legal battle to have the legislation pass constitutional muster.

Whether the electoral reforms would be in place by the 2024 national election remains to be seen.

Everybody was hoping for the best while having their minds open for a worst-case scenario, where a longer delay could affect the national elections and cause a constitutional crisis.

However, policy analyst Dr Nkosikhulule Nyembezi said such a crisis could be avoided if parliament prioritised the legislation so that all concerns or omissions were addressed in time – at least by February next year, if queries emerged after November.

Nyembezi and another election expert, Michael Atkins, did not expect parliament to be able to refine the Act sufficiently to be constitutionally compliant. They foresaw a huge potential for more court challenges in future.

Atkins highlighted the fact that extra votes for independent candidates being discarded and donated to political parties could be challenged in court. He pinned his hopes on further public inputs being opened by the National Council of Provinces.

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According to Nyembezi, others might want to petition President Cyril Ramaphosa not to sign the Bill into law until it was in line with the constitution.

Nyembezi said the Bill should be passed in November, as the undertaking by parliament to the Constitutional Court to meet the deadline was realistic. But the legislation would be passed with a lot of queries from various stakeholders, particularly civil society and some political organisations.

One of the possible queries is around the “cooling off” period for a member who terminated his membership of a political party. Nyembezi strongly believes there should be no restriction on an individual’s choice of whether to associate or dissociate with a particular party, because the freedom of association or dissociation is a constitutional imperative.

“It is not up to a political party to impose the cooling off period, because membership of an association is voluntary. Political parties have no power to impose things that the constitution does not impose,” he said.

“It is meant to be like that, it must be easy to leave political parties like it is easy to join them,” he said.

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Atkins said while the November deadline would be met, the legislation would not be constitutional. “They should meet the deadline, but with an unconstitutional Bill. It is going to be messy. Hopefully, there will be more public consultation before then in the NCOP,” he said.

Atkins, a specialist on results accuracy assessment, said he believed the proportional representation (PR) proposals remained unconstitutional. “They are discarding votes cast for independents when they do the PR calculations. It means that parties get a bonus of seats. The only way to keep proportionality [seat share equals vote share, for parties] is to have separate PR and constituency ballots.”

In May the IEC was forced to recount the results of the 2021 November local elections at the Cape Town metro after it gave a seat to the wrong party by error. This after the Cape Independence Party (Capexit) lodged an appeal with the Electoral Court against the Electoral Commission of SA’s (IEC) decision that the Capexit had failed to lodge its objection in time.

The court remitted the matter to the IEC for a resolution, notwithstanding the time delay.

The IEC blamed the confusion on the party’s decision to change its name three months before the election.