By Ernest Molo

South Africa is poised to enact a new Electoral Act that is likely to be a hybrid of the Proportional Representation (PR) model and the Constituency-Based system.

All things considered this will happen anytime from the 10th of December 2022 barring any last-minute changes that could be necessitated by the ongoing process of written submissions from stakeholders and interested persons as requested by the national council of provinces.

The final version of the Amended Electoral Act, however imperfect, will represent a great victory for democracy and public participation in South Africa, considering that the process for the amendment was lobbied for by a non-profit organisation called My Vote Counts whose objective is to ensure that every person has equal representation in the democratic process.

Letlhogonolo Letshele, an Electoral Systems Researcher at My Vote Counts, punched holes in South Africa’s electoral system when presenting on ‘Tracking Electoral Reform in South Africa: Understanding public participation in the Electoral Amendment Bill’ during the virtual public hearings conducted by the SADC Parliamentary Forum’s Standing Committee on Democratisation, Governance and Human Rights (DGHR) last week Friday November 25th.

It all started when on 10 January 2022, the Minister of Home Affairs introduced the Electoral Amendment Bill to Parliament to amend the Electoral Act of 1998 to allow for individuals to contest for seats in the National Assembly and provincial legislatures as independent candidates. According to Letshele, the Bill provided for the nomination of independent candidates to contest elections and provides for the requirements, which persons who wish to be registered as independent candidates must meet.

It amended Schedule 1 of the Electoral Act to set out a new electoral formula for allocation of seats, the formula used to calculate the quota of seats is different for independents and parties. Regional seats are allocated in three rounds and parties allocated in the third round. She said the Bill was proposed as a section 76 Bill which is an ordinary bill that affects the provinces (and therefore must be considered by both the National Assembly and the National Council of Provinces).

On 11 June 2020 the Constitutional Court in the New Nation Movement NPC & Others Case ruled that the Electoral Act is unconstitutional to the extent that it prevents adult citizens from standing for, and being elected to, the National Assembly and Provincial Legislatures as independent candidates.

According to Letshele, the Court found that this infringed on the rights of freedom of association and political rights of individuals contained in section 18 and 19 of the Constitution.

It then ordered Parliament to fix the defects in the Electoral Act to allow for independent candidates to contest elections in the National Assembly and provincial legislatures.

She said that the Court did not prescribe the type of electoral system to be chosen since this is the prerogative of parliament and provided the system to be decided included independent candidates and resulted in general proportionality. Parliament was given 24 months from the day of the ruling to amend the legislation Letshele told the virtual public hearings that in response to the unconstitutionality of the Electoral Act, the Minister of Home Affairs established the Ministerial Advisory Committee on the Electoral System in February 202. The purpose of the Committee was to engage with relevant stakeholders to get views on how the electoral system should change to strengthen democracy.

The Committee compiled a report in June 2021 that included potential options to change the electoral system. The report, says Letshele, provided two electoral system options for consideration.

A minority report (adding independent candidates to the existing system) and a majority report (having a hybrid system of Proportional Representation (PR) and constituency-based).

The Minister was given the report and subsequently presented it to Cabinet for approval and then presented the report and the Electoral Amendment Bill to Parliament’s Portfolio Committee on Home Affairs.

On 8 February 2022, the Portfolio Committee on Home Affairs invited call for comments. The deadline for comments was 21 February 2022. The committee received 107 written submissions. Letshele said their criticism of the Bill is based on the minority report presented by the Ministerial Advisory Committee in that it makes small changes to the Electoral Act by applying the closed-list PR system to parties and individuals.

The National Assembly is divided into 200 regional seats and 200 compensatory seats drawn from PR lists. It is biased against independent candidates because they can only contest 200 seats. They contend that it distorts proportionality because of the number of wasted votes. Regions are too big. Provinces are regarded as constituencies and there are many other barriers to entry for independent candidates.

Further, they were concerned that public consultations – which the SADC PF regards as the cornerstone of just laws – were limited and the delay in introducing the Bill to Parliament caused urgency. Letshele said that in response to the criticism, the committee further adopted a nationwide public participation programme where committee members visited three districts in every province to consult the public on the Bill.

The committee heard public comments from 1 March to 23 March 2022. These consultations were criticised because they only dealt with the Amendment Bill and no other reform options were considered.

On 26 April, Parliament filed papers with the Constitutional Court requesting a six-month extension of the deadline for the finalisation of the amendment of the Electoral Act. The extension was granted on 10 June hence the new deadline of 10 December 2022.

On 25 August the Portfolio Committee adopted the A list of the Electoral Amendment Bill which set out all of the proposed amendments to the Bill. The Committee also broadened the subject of the Bill.

Letshele says that the public participation process was flawed. The committee did not give notice to the public before the hearings. The committee issued a notice on 3 March 2022 that hearings on the Bill would commence on 7 March 2022.

She argued that public participation cannot be meaningful if people are not given enough time to study the Bill, consider their position and formulate their position. But all is not lost. My Vote Counts believes that South Africa needs an active large scale civic movement on electoral reform.

“We must see this Bill as the beginning of the process rather than the end, we must undertake a survey on citizen attitude about the electoral system,” Letshele said, adding that academics need to think creatively about how to “comprehensively redesign electoral system for the long term”.

Letlhogonolo Letshele’s organisation is a fierce
defender of democracy

She said that any effort at electoral reform must have people under 35 at its centre as these changes will affect them the most.

When welcoming SADC citizens to the public hearings, which preface the plenary session slated for December 5th in the Democratic Republic of Congo, the Chairperson of the SADC PF Committee on Democratisation, Governance and Human Rights, Dought Ndiweni reiterated that democratic processes require active, animated citizens who engage with each other to identify and understand their political interests, to discover their social value and to decide public issues through public debate.

Ndiweni said that when it comes to public participation in legislative processes, ultimately democratic values in a pluralistic society are satisfied only if the following three conditions are met:

First, the laws must result from a fair and open participatory process in which all publicly available reasons have been respected;
Secondly the outcome is such that citizens may continue to cooperate in deliberation rather than merely comply;

and Thirdly, the source of sovereign power is the public deliberation of the majority.” It will seem that My Vote Counts has defended this principle stoically.

This article was originally published in the Botswana Guardian.