Civil society groups threaten Parliament with legal action over Electoral Amendment Bill

• Civil society organisations are considering legal action against the Electoral Amendment Bill in its current form.
• They are unhappy that the majority recommendation by a ministerial advisory committee has been ignored.
• The committee, nearing the end of its work on the bill, has previously defended its process.

Civil society groups are threatening Parliament with legal action over the Electoral Amendment Bill, which it is processing.

A group of 22 civil society organisations sent a letter with concerns about the Electoral Amendment Bill to the Portfolio Committee on Home Affairs, questioning whether the bill would be constitutional once enacted, because it went with the minority view of a ministerial advisory committee (MAC) on what form the amendment should take.

The bill is necessitated by an 11 June 2020 Constitutional Court ruling that declared the Electoral Act 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 apex court then suspended the declaration of unconstitutionality for “24 months to afford Parliament an opportunity to remedy the defect giving rise to the unconstitutionality”. However, after Parliament failed to meet the deadline, it extended it for six months.

Parliament initially deferred working on the amendment to the Department of Home Affairs.

Home Affairs Minister Aaron Motsoaledi appointed the MAC, chaired by former minister Valli Moosa in February 2021, more than six months after the court order.

The committee’s majority recommendation envisaged a system that provided a mixed single-member constituency and proportional representation (PR) system.

Motsoaledi and his department went with the minority advice and drafted a bill that relied solely on a PR system, amending it as little as possible.

The ANC has subsequently fallen in step behind Motsoaledi, after the bill was eventually introduced to Parliament in January this year.

In a statement, one of the aggrieved organisations, My Vote Counts, says they feel that if Parliament continues to favour the minority view of the MAC, and “continues to endorse a flawed participatory process, this will not only bring the act’s constitutionality into question, but also pose several risks for the upcoming 2024 general election”.

They point out that the extended deadline – 10 December 2022 – is fast approaching and “Parliament still does not seem to be considering or engaging with the majority view, nor entertaining concerns from civil society over the constitutionality of the process.

In the letter, the organisations stated that several of them made submissions to the MAC, with some of their proposals favourably received in the majority proposal.

“However, this was inexplicably discarded by the minister of Home Affairs who instead chose to commit to legislation based on the minority view of the MAC. We also participated, in various ways, on the Parliamentary processes regarding the Electoral Amendment Bill where our submissions have similarly been sidelined. This presents us and the country with serious difficulties,” the letter reads.

“This may inevitably lead us to a situation in which litigation becomes unavoidable to challenge a bill that transgresses on key constitutional principles. Our view, supported by several independent legal opinions, is that the current bill would not stand the test of constitutional compliance.

“Issues that may provide grounds for a constitutional challenge include the process of the certification of the bill, the minister’s choice of the minority view over the majority view of the MAC, and the hasty public participation process embarked on thus far.”

Committee chairperson, ANC MP Mosa Chabane has previously defended the committee against criticism of the process on the bill.

The committee met on Wednesday, where it resolved the “residual matters” on the content of the bill. This allows for the drafting of the A list for the bill, meaning it is another step closer to being presented to the House for adoption.

“The committee has re-emphasised the requirement for representation of independent candidates by agents within a voting station to ensure fairness. It has also resolved that the quota of these agents will be left to the Electoral Commission of South Africa to deal with in the regulations,” reads a statement from the committee.

“The committee remains of the view that these decisions create the required and necessary balance to ensure a fair and reasonable legislation for both independent and political parties. Furthermore, these decisions will in effect enable the legal teams to complete the drafting process of the A list bill which will then be considered by the committee.”