While there were strong reasons for using and then continuing with the simple proportional representation system at the time, such as the diversity of the electorate, and the importance of accommodating various minorities within the electoral system, it was always understood that this was an interim arrangement.

Although the subsequent van Zyl Slabbert and Motlanthe reviews of the electoral system recommended a mixed multi-member constituency system within a proportional representation framework, no action was taken to advance electoral reform. Following the New Nation judgment in 2020, Parliament was forced to consider reforms that would allow independent candidates to participate in national and provincial elections.

Although it was known in August 2020 that work would need to commence immediately for a constituency system to be viable in time for the 2024 election, the Home Affairs Portfolio Committee waited for the Minister to act. In February 2021, after initially promising to consult an inter-Ministerial Committee, the Minister changed tack, and appointed the Ministerial Advisory Committee (MAC) that met during March and April and presented its Report in June 2021. The MAC could not reach consensus, and presented the Minister with two options – Option 1 being the basis for what was eventually passed in the Electoral Amendment Act, while Option 2 was a hybrid single-member constituency and proportional representation system, quite similar to the structure of elections at local government.

In October 2021, the Minister commissioned the drafting of the Electoral Amendment Bill, to implement Option 1, which was (perhaps erroneously) referred to as the “minimalist” option that ostensibly merely “inserted” independent candidates into the current electoral system.

The logical and numerical contradictions inherent in the “inclusion” of individuals in a proportional representation system (which is by nature a system for parties) meant that Parliament had to deal with a number of unforeseen consequences during the processing of the Bill in 2022. In all, there were more than 30 Portfolio Committee meetings, 8 NCOP Select Committee meetings, and three rounds of public submissions before the Bill was eventually passed in February 2023.

During the NCOP deliberations, as a consequence of substantial civil society disquiet and protest concerning the Bill, the Minister introduced a new section establishing the Electoral Reform Consultation Panel, to consider wider electoral reform to be considered by Parliament after the 2024 election.

This Panel is tasked with presenting Parliament with a Report within a year of the 2024 election, for consideration ahead of the 2029 election. While this was presented as a serious focus on finally getting to grips with the long-awaited reform of our election system, the picture is not necessarily as clear as is made out. Firstly, following the New Nation judgment in 2020, there was indeed time to implement a full constituency system, which would largely have mirrored our local government elections. However, the 8-month delay after the judgment before the MAC was formed, and the 4-month delay after the MAC Report was completed meant that there would not have been time ahead of the 2024 election to implement the necessary demarcations for a constituency system.

The narrative is also undermined somewhat by events since the passing of the Electoral Amendment Act. The President signed the Act in April 2023. Section 23 of the Act stipulates that the Panel was to have been formed within four months of the commencement of the Act, with the Minister selecting names from public nominations in consultation with the IEC to present to Parliament for approval. In a slip that was clearly unintentional, the commencement of the Act was not gazetted as everyone assumed in April 2023. This was only corrected in June, although a call for nominations had already gone out. In the end, the Panel was to have been formed by 19 October 2023, with a fresh round of nominations closing early in August.

Despite some queries from the Home Affairs Portfolio Committee, the Minister presented a list of names for approval only early in December. As it happened, the Portfolio Committee was unhappy at the lack of diversity among the 24 nominations for the nine-member Panel, and decided to call for a fresh round of nominations, closing on 19 January 2024.

To date, the Minister has not presented a list of names to Parliament, more than five months after the original timing stipulated in the Electoral Amendment Act. It now seems unlikely that the Panel will be convened before the May elections. [Update: On 6 May 2024, Parliament’s ATC communicated that the Minister of Home Affairs submitted a list of nominees for appointment to the Electoral Reform Consultation Panel to the Acting Speaker. This was referred to the Portfolio Committee on Home Affairs for consideration and report. The Committee is expected to consider this list on 14 May and the House on 16 May]

On its own, this suggests a lack of commitment on the part of the Executive to the electoral reform process. However, the Act stipulated that the Panel was to conduct research in the period before the election (which period should have been more than six months), and then to hold public consultations after the election, and reporting within 12 months of the election date.

Logically speaking, there are two options for the Panel: they could conduct the research and public consultations in a shorter time period, potentially compromising the quality of the work, or they could seek permission to report later than the stipulated design. The problem with the second option would be that delays could impact the possibility of implementing changes needed ahead of the 2029 election.

However, there is a second factor which potentially has a larger impact on the process to be undertaken by the Panel and any subsequent decisions by Parliament. This writer made various submissions to Parliament concerning contradictions and problems with the Bill at the time. After the Bill was passed, I prepared Expert Reports for the Independent Candidate Association and One South Africa Movement cases brought before the Constitution Court in 2023. These highlighted key numerical imbalances affecting the fairness of the electoral system in certain respects. Without going into the details of why those cases failed, the fact remains that these imbalances still exist, but the Court did not rule that they were unconstitutional. The easiest to illustrate is that an independent candidate contesting a Regional election for the National Assembly requires approximately as many votes to be sure of a seat from one Regional ballot as a party requires from two ballots, drawing from the whole country.

Except in the very narrowest of circumstances, the ruling cannot be challenged or reviewed. This means that the main constitutional objections to the new electoral system are effectively dead. The panel therefore commences its work with no formal imperative to recommend any change, and Parliament likewise would have no direct imperative to accept any recommendations for change, even if the Panel were to make such.

“For those seeking meaningful electoral reform, as was anticipated during the period when the Constitution was drafted and since then, the picture may be looking a little bleak”

For those seeking meaningful electoral reform, as was anticipated during the period when the Constitution was drafted and since then, the picture may be looking a little bleak. If the electoral system is to be improved upon (and there are several concerns and anomalies with the current Act, beyond those raised in the Constitutional Court), then it is going to require vigorous participation by civil society in the work of the Panel, and then the political will in the new Parliament to adopt a system that could change the political culture of the country in significant ways.

Aside from the potentially changed political environment following the 2024 election, the only other factor that might have a positive effect on the deliberations of the Panel would be if certain of the anticipated numerical anomalies arise in the election results. Mainly, however, the prospects of change rest on how firmly society speaks to the electoral reform process, such as it is.