The Constitutional Court has agreed to defer the finalisation of the controversial Electoral Amendment Bill until February 28.
This after, parliament approached the apex court on an urgent basis to ask for an extension in December 2022. Previously, the court had ruled that the Electoral Act was unconstitutional, stating that it excluded candidates from standing for political office without being members of political parties.
In a statement on Monday, parliament spokesperson Moloto Mothapo said: “In June 2020, the Constitutional Court declared that the Electoral Act was constitutionally invalid insofar as it makes it impossible for candidates to stand for political office without being members of political parties.
“The court suspended its ruling for 24 months and gave parliament until 10 June 2022 to rectify the constitutional defects in the act and to make provision for independent candidates to contest elections to the National Assembly and the provincial legislatures.
“In December, parliament lodged an urgent application to the Constitutional Court requesting that it be granted a further extension to finalise the bill – from 10 December 2022 until 28 February.
“The apex court then issued an interim order to further extend its declaration of invalidity order deadline for the Electoral Act until 31 January to allow it more time to consider the request to extend the deadline to 28th February, to allow parliament to finalise the bill, which seeks to amend the act.
“On Friday 20 January, the court agreed to further suspend its invalidity order from 10 December 2022 to 28 February 2023.”
In June 2022, the amendment bill was deliberated upon at the National Assembly and was adopted after 232 MPs voted in its favour against 98. Three MPs abstained.
The highly contested amendment bill gives provision for independent candidates to contest elections on a provincial and national level. It was introduced to parliament by Aaron Motsoaledi, Minister of Home Affairs, on January 10 2022 and published for public comment on January 21.
“The bill was warranted by the Constitutional Court judgment in the New Nation Movement NPC and Others vs President of the Republic of South Africa and Others case in June 2020, which ruled that the Electoral Act of 1998 was unconstitutional to the extent that it requires that adult citizens may be elected to the National Assembly and provincial legislatures only through their membership of political parties.
“The bill is mostly aimed at, among others, inserting certain definitions that are deemed consequential to the expansion of the act to include independent candidates as contesters to elections in the National Assembly and provincial legislatures.
“It seeks to provide for the nomination of independent candidates to contest elections in the National Assembly or provincial legislatures and also provides for the requirements and qualifications that must be met by persons who wish to be registered as independent candidates,” Mothapo said at the time.
However, civil society organisations, who opposed the bill in its current form, said it was placing unfair criteria on independent candidates to contest. The organisations seemed set to take parliament to court to rescind a decision to adopt the bill into law.
The SA Council of Churches (SACC) was among the parties contesting the bill and were backed by independent political parties including the newly formed Build One SA (BOSA).
SACC general secretary Bishop Malusi Mpumlwana said the bill, which is set to usher changes in the country’s electoral system, is questionable and unjust.
He said the proposed changes will oppress independent candidates, and suggested that they will also deviate the bill from its main mandate to afford all voters equal rights.
Mpumlwana said the responsibility of parliament is to amend the unconstitutionality of the current electoral system, which does not “do justice to independents and those who will vote for them”.
He explained: “The responsibility that was set at the foot of parliament in June 2020 was to amend the unconstitutionality of the current electoral system in a manner that would remove the requirement of political party affiliation in order to run for public office.
“Individual independent candidates are made to compete unfairly with political parties for votes, and in this scheme, they will also stand to lose the impact of votes beyond the basic number required for a seat.
“If a seat in parliament is worth 50 000 votes, and an independent candidate gets 500 000 votes, only 50 000 will count and all of 450 000 ballots cast away. Yet a political party with the same number of votes will lose no votes and register 10 MPs. Thus, on this alone, allowing the bill to pass would be a travesty of justice.”
According to Mudzuli Rakhivhane, spokesperson of BOSA at the time, the bill is unconstitutional and flawed.
She said there is a need for a new electoral system that will attract and accommodate talented youth who will transform the governance of the country for it to thrive.
“The bill is unreasonable, unfair, and unconstitutional for at least four reasons. The discarding of excess votes, independent candidates are limited to only half the seats in parliament, the addition of onerous threshold requirements for independents to stand for election, and the matter of when vacancies in parliament arise through resignation or death,” Rakhivhane said.
“We need a new electoral system that will attract young people to involve themselves in democratic discourse. The country faces numerous crises, which require new voices and actors to fix them.
“A new electoral system that improves accountability, attracts expertise and talent and improves governance is urgently required if South Africa is to thrive and prosper.”
Also read: Electoral Amendment bill adopted in parly
Electoral Amendment Bill unjust and questionable – SACC
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