By Lehlohonolo Lehana.
President Cyril Ramaphosa has signed the Electoral Amendment Bill into law, which will now allow independent candidates to stand in provincial and national elections.
The bill was passed by the National Assembly in February after a Constitutional Court order to amend the law which was handed down on 11 June 2020.
The Bill provides for the amendment of the Electoral Act, 1992 (Act No. 73 of 1998) and gives effect to the Constitutional Court judgment.
The judgment in the matter of the New Nation Movement NPC & President of the Republic of South Africa & others, declared the Electoral Act of 1998 unconstitutional for stipulating that election to the National Assembly and provincial legislatures may only be attained through membership of political parties.
The amended electoral act now provides for the inclusion and nomination of independent candidates as contesters to elections in the National Assembly and provincial legislatures.
Notable measures that feature in the bill are:
- The requirements which must be met by persons who wish to be nominated as independent candidates;
- The inspection of copies of lists of independent candidates and accompanying documents;
- Provision for objections to independent candidates;
- The inclusion of a list of independent candidates entitled to contest elections;
- Requirement for the appointment of agents by independent candidates;
- Obligation for independent candidates to abide by the Electoral Code of Conduct;
- A revised formula for the allocation of seats and their re-allocation in the event of vacated seats; and
- Stipulation for the Minister to establish the Electoral Reform Consultation Panel.
The amended Act requires the Minister of Home Affairs to establish the Electoral Reform Consultation Panel within four months of gazetting the amendments.
Following the stipulated independent investigations and consultations, the Panel will make non-binding recommendations on potential reforms of the electoral system for future elections of the National Assembly and the provincial legislatures after the 2024 polls.
“The Electoral Amendment Bill marks a significant milestone in the evolution of our democracy by expanding electoral participation and widening the pool of leadership choice for the National Assembly and provincial legislatures. The bill presents a development that can only enrich and sustain our growing constitutional democracy, Ramaphosa said.
The bill went through extensive public consultations prompting parliament to request two deadline extensions from the constitutional court. Thus,the final deadline for parliament to pass the bill was 28 February 2023.
Ramaphosa is satisfied that the processes leading to the passing of the bill followed all legislative procedures as envisaged by the constitution and that the substance of the bill will pass constitutional scrutiny.
Civil society organisations lobbied for parliament not to pass the law, saying it contradicts the Constitutional Court ruling, will disadvantage independent candidates and that the public participation process was inadequate.
South Africa has operated under a proportional representation (PR) system for all of its democratic history. But the Constitution enshrines the right of every citizen to stand for elected office and there have been various calls since the 1994 elections for the country to move to some form of a constituency model.
A general concern is the Bill does not allow a mixed constituency-proportional list system.
Implementing such a system in time for the 2024 elections is not plausible, and it is also not supported by the governing African National Congress (ANC).