IEC on impact of Constitutional Court ruling allowing independent candidates to be elected to the National Assembly and Provincial Legislatures, with Minister and Deputy Minister

Home Affairs

25 June 2020
Chairperson: Adv B Bongo (ANC)
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Meeting Summary

Video: Portfolio Committee on Home Affairs, (National Assembly) 25:06:2020

The Electoral Commission briefed the Committee on the implications of the Constitutional Court’s judgment that the Electoral Act is 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 Electoral Commission said that the whole spectrum of electoral modalities would be affected. A new electoral system would mean re-constructing the whole electoral edifice.

The amendment of the Electoral Act would pose logistical challenges and would require re-training of officials, different balloting and Information and Communications Technology systems, and possibly the introduction of constituency offices and demarcation.

The Commission urged the Committee to begin its work as quickly as possible, noting that elections took 24 months to prepare habitually, and this left almost no margin for delays after the 24-month deadline set by the Constitutional Court for the amendment of legislation.

Members questioned whether the facts supported the Commission’s claim that time was insufficient. Member’s concerns focused on the logistical and budget challenges the Electoral Commission would face. Might the harmonisation of the local and national election cycles save costs? Members raised the need to build on the work done by parties and the recommendations in the Van Zyl Slabbert and Motlanthe reports.

The Commission clarified that it provided technical assistance, and was not responsible for re-drafting the electoral laws. Parliament was the body responsible for the legal reform of the electoral system. The Committee Chairperson nevertheless proposed that the Commission should provide some options for consideration, not to replace Parliament but to help it make decisions.

The Committee agreed on the need for an Integrated Roadmap in cooperation with the executive and Electoral Commission in order to understand the timelines for Parliament and the Electoral Commission, and thus to determine whether the court-mandated deadline was possible or not.

Meeting report

The Chairperson noted the Supplementary Budget presented by the Minister of Finance the previous day, and proposed the Committee supported the government’s efforts to counter the Covid-19 pandemic.

He noted that the Independent Electoral Commission (IEC), as a Chapter Nine Institution, reported directly to the Speaker. Nevertheless, the Committee would need to be involved in drafting legislation regarding the Constitutional Court’s judgment in terms of independent candidates.

The ruling had legal and financial implications for the Committee and the IEC, whose budget may have to be expanded to deal with the added pressure.

The matter of electoral system reform had been addressed numerous times, including in the Van Zyl Slabbert Report [the Electoral Task Team of January 2003]. After getting the IEC’s input, the Committee would need Parliament’s input on the roadmap.

The Chairperson raised that he had received communication from members of the public wondering whether it was the duty of the court to raise this matter. He proposed that, in interpreting the law, courts would also have to make law. As South Africa was a constitutional democracy, the Constitutional Court would always be the final arbiter of the constitutionality of the actions of the executive and legislature.

The judgment would require conversation between political parties and the public at large as to what kind of electoral regime the country should have. Parliament had 24 months to finalise draft legislation. As discussions began, Parliament would have to assess if this was enough time.

The Chairperson noted the judgment raised a number of issues. For instance, what would happen should an independent candidate die or resign? Accountability was easy at the ward level, but would be more difficult at a provincial or national level.

The question of promoting accountability of directly elected independents would require investigation. The Committee would engage with all input from members of the public and parties.

Apologies were tendered by Ms T Legwase (ANC) and Ms L van der Merwe (IFP).

IEC Presentation
Mr Glen Mashinini, Chair of the Electoral Commission, thanked the Chairperson for the opportunity to present on the ConCourt judgment declaring certain sections of the Elections Act barring independent candidates from competing in provincial and national elections unconstitutional.

Mr Mashinini welcomed the ruling of the country’s highest court, providing clarity on the rights of citizens to stand for election at all levels of government without belonging to a political party. This decision was ground-breaking, and would have far-reaching impacts on the electoral system and political sphere. This was probably the most significant judgment on the electoral system since democracy. The IEC had continued to study the judgment. The IEC had received a legal opinion from Adv G Budlender (SC) and Adv Luthuli.

From the outset, Mr Mashinini noted that the ConCourt did not pronounce on how Parliament should rectify the unconstitutionality of the Act, nor on a preferred model, expressly leaving this to Parliament to determine. Equally the IEC did not have a preferred model and would not seek to steer the Committee in any particular direction. Rather, it would offer technical expertise as well as access to regional and international benchmarking on various models of electoral systems. This would include helping Parliament to understand the various implications of the alternatives.

Given the potential scope of the work and necessary due processes to be followed in amending the electoral system, 24 months was a very short amount of time. Time was even more constrained when one considered that amendments from Parliament would likely require much work from the IEC and political parties afterwards. Time was very much of the essence given the elections were 4 years away, and the IEC usually took 18-24 months to prepare for an election under normal circumstances.

Mr Sy Mamabolo, Chief Executive Officer (CEO) of the IEC, continued the presentation. The purpose of the IEC’s presentation was to analyse the judgment, identify the responsibilities arising and provide a high-level review of operational implications for the Commission. The presentation would not consider options on electoral systems, which could be dealt with at a later point.

The New Nation Movement (NNM), applicants in the case, first sought a declaration of constitutionality in the Western Cape High Court. In this litigation, Parliament did not actively oppose the application, although the IEC and Minister of Home Affairs did. The state parties won in that the High Court dismissed the application. The NNM then proceeded with a direct appeal to the Constitutional Court, heard on the 2 May 2019 – the court concluded the matter was not urgent given the election was on 8 May 2019. The matter itself was heard in August 2019.

The IEC was indifferent in terms of the electoral system, as the ultimate responsibility for the system was with Parliament. The IEC merely submitted that Parliament had the right to decide the electoral system, it had done so and this system produced the critical issue, which was proportionality.

The order of court was roughly as follows: The Electoral Act was unconstitutional to the extent that it required that citizens be elected to the National Assembly and Provincial Legislatures only through membership of political parties. The declaration of unconstitutionality did not affect previous elections. The judgment was suspended for 24 months to allow Parliament to remedy the defect.

Three judgments were delivered by the Constitutional Court. The majority judgment was penned by Madlanga J supported by eight other judges. Jafta J issued a concurring judgment also supported by eight other judges. Parliament was bound by both judgments. There was a lone dissent by Froneman J.

The building blocks of the Court’s reasoning were that the proper understanding of the political rights was for the rights in Section 19 to be read together. The proper understanding had to begin that S19(1) gave the freedom to make political choices, which included the choice not to join or form a political party. In order to appreciate the rights in S19(3) to hold office, this ought to be read together with rights in S18 granting freedom of association. The Court thus proposed that the freedom to associate in S18 gave content S19(3)b.

S18 protected both the right to associate as well as the right to not associate. The section included both positive and negative sides. Interpreting the content of S19(3)(b) had to take into account the content of the right of the freedom of association. The freedom to make choices in association was also related to the S10 right to dignity.

The Court had taken a human-rights-based approach in interpreting S19(3)(b). The Court gave primacy to the Bill of Rights in defining the scope and extent of the political rights protected. This limited the choices that Parliament could make under S46 and S105 to an electoral system. The judgment argued that, in coming up with an electoral system that resulted in proportionality, Parliament had to give primacy to the Bill of Rights, in particular the rights contained in S10, S18 and S19.

Whilst Parliament was entitled to decide the design of the electoral system, this system had to give primacy to the Bill of Rights and generally result in proportionality.

In relation to these provisions, the Court argued that the focus of S46 and S105 was on the result of proportionality. Importantly, the Court said that proportionality did not equal exclusive party representation. The Court was thus proposing that one could achieve general proportionality even in giving independent candidates the chance to compete in national elections.

There were other matters the Court raised, implicating other provisions of the Constitution which made reference to political parties: S57(2), S116, S178(1)(h), S193(5), S236 and Schedule 3B had to be viewed in light of the Constitution [implicitly] denouncing one-party governance, not as a legal prescription of a multi-party system.

S157(2)(a) gave two options for local government, allowing either for a purely proportional or mixed member representation. Parliament had chosen the mixed member system in local government. This internal limitation was permissible according to the Court.

Jafta J’s judgment commanded support of eight judges and proposed that, whilst Parliament had the power to pass legislation that regulated the exercise of the right to stand for public office, it could not limit this right.

Froneman J concluded that, based on constitutional values and norms, S19(3)(b) produced an individual right to hold office through a multiparty system.

The judgment had huge operational implications for the IEC. The IEC’s current Information and Communications Technology (ICT) system was predicated on the party system. The number and size of ballot papers would also be different, and IEC staff would have to be re-trained. Local offices would have to be reconfigured in the event of a constituency system. Counting and the declaration of results, as well as the modalities of voting would have to change.

The judgment would also impact the electoral cycle. The whole spectrum of electoral modalities would be affected.

Timelines were also an issue: the 24-month period was unlikely to be enough time to amend the system. The Municipal Demarcation Board took 24 months for existing demarcation of municipal wards. The delimitation of new constituencies was likely to take much more time than this. The whole electoral edifice would have to be reconstructed. Mr Mamabolo urged Parliament to begin its review as quickly as possible

The Chairperson ceded to the Minister of Home Affairs, Dr Aaron Motsoaledi. The Minister concurred that Parliament had to act as swiftly as possible. In Cabinet, the Minister of Justice brought the case up. Cabinet had decided the Department of Home Affairs (DHA) should create a document explaining the judgment, and choose a Committee of Ministers to advise Cabinet on the issue.

The Minister had also received a letter from the Parliamentary Legal Advisor requesting a legislative amendment plan. The DHA would have to begin work immediately.

Mr R Dyantyi (ANC) proposed the need for an integrated roadmap for the executive’s Ministerial Committee, Parliament and the IEC. There was a need to understand whether the facts supported the IEC’s claim that time was insufficient. Parliament would have to understand the time needed to pass the legislation. This was an opportunity not to work in silos. Mr Dyantyi asked whether the IEC would be ready to present on this roadmap within the next two weeks. There was also a need to understand the risks step-by-step. Depending on the timeline advanced, Parliament may have to approach the Constitutional Court. It was clear that parties had their work cut out for them. The ANC had always said “the people shall govern”. The judgment did not contradict this.

Ms L Tito (EFF) asked, if the national elections would use a mixed proportional system, whether it would not be sensible to harmonise the elections with local elections to save costs.

Ms A Khanyile (DA) echoed Mr Dyantyi’s request for more information from the IEC on timeframes. She asked how ballot papers would be drawn up and whether separate papers would be used for candidates. She also requested clarity on what would happen if a seat held by an independent candidate became vacant.

Mr J McGluwa (DA) said that Parliament was ready to assist the Commission. He stressed the huge implications the ruling would have on the IEC, and said the IEC needed to show it was ready to deal with these implications. He wanted the IEC to explain how it would deal with the pandemic and the budget constraints it would introduce. There would be little rest for members and the IEC if they were to comply with the timeline. He argued it would be a mess to combine all elections given that existing elections were already a logistical issue.

Mr M Lekota (COPE) noted the concern over time. The rights outlined by the Constitutional Court needed to be made accessible to South Africans. Parliament had to ensure this. Time should not be an excuse. Parliament should lead the way. He noted the failure of the system to “let the people govern”, which had led to abuse of power.

Mr A Roos (DA) asked why the Minister and IEC opposed the application. Was there a need to oppose the application to make submissions on urgency and otherwise? Did this opposition cause the cost order? Mr Roos noted a number of acts involving political parties – would these acts have to be amended? Parliament knew this was coming, given the Motlanthe Report of 2017. The Van Zyl Slabbert Report had designed a similar system. Mr Roos proposed these reports should make up the basis of planning the new system, rather than starting from scratch. Mr Roos also noted his disagreement with the Chairperson’s congratulation of the government’s response to the Covid-19 pandemic, maintaining that service delivery at Home Affairs had declined substantially.

Mr D Moela (ANC) requested clarity on how IEC constituency offices would operate in a new system.

Ms M Molekwa (ANC) stated her concern on timelines. She asked the IEC what the impact of the processes would be on the Local Government elections of 2021. She enquired as to how soon the IEC could make available a draft amendment bill. She wanted to know how the seat allocations would work.

Mr M Chabane (ANC) disagreed with Mr Roos and affirmed his appreciation of the government’s work during the pandemic. He noted the context of the 65th anniversary of the Freedom Charter. The IEC noted the possibility of the judgment’s outcome the previous year, arguing the readiness of the Commission was dependent on the final amendments made by Parliament. He requested the IEC to give an understanding of the possible cost implications. He noted the need to establish a timeframe with cabinet and the IEC.

Mr M Tshwaku (EFF) echoed Ms Tito’s question about reducing costs through harmonisation of election [cycles]. He said there is was need for the IEC to look at the Electoral Act for possible unconstitutionality in other provisions.

The Deputy Minister of Home Affairs, Mr Njabulo Nzuza, agreed with Mr Dyantyi’s comments on working on a plan together with the executive.

Mr Lekota noted that COPE had submitted a bill on the electoral system in the previous Parliament that was not attended to. COPE would like to resubmit this bill to the Committee to contribute to its work.

Mr Mashinini replied that the IEC was not necessarily saying the time available was not enough, but rather stressing that time was of the essence and that the timeframe would be very tight. He noted that the IEC presentation was only its preliminary view, and in time it would clarify its position on the areas it had identified. He also noted a misunderstanding of the roles in the reform process. The IEC was only able to provide technical assistance. Parliament was the body responsible for the legal reform of the electoral system. Matters of the local government elections were not involved in the Court’s judgment. Matters relating to the local government elections were under confidential discussion between the IEC and the Minister of Cooperative Governance and Traditional Affairs (COGTA). On the IEC and Minister opposing the NNM application, the Commission was representing the existing view of the law, but did welcome the clarity. The IEC merely implemented the laws made by Parliament. He asked for the Committee’s indulgence to provide some of the details requested by Members at a later stage, as providing these details may be premature. As far as the IEC knew at the current stage, the judgment would likely impact on the Political Party Funding Act.

Mr Mamabolo said that many of the implications and details around them would only become apparent when the Committee began to make specific choices about the nature of the political system. The IEC’s opposition to the NNM application was due to the IEC’s conviction that there was nothing untoward about the existing electoral system, as outlined in its presentation. A number of other pieces of legislation would require amendment – all laws making reference to political parties would have to be revisited. The issue of constituency offices would only become relevant if Parliament decided to introduce constituencies. He endorsed the view of the Commission Chairperson that the 24 months would have to be used exceedingly well in order for the IEC to have sufficient time to prepare the 2024 elections.

The Minister echoed the IEC statements that policy direction in this matter was entirely the responsibility of Parliament. He encouraged members to revisit the Constitutional Court judgment. It was imperative Parliament lead, and the IEC would execute.

Dr Motsoaledi noted his disappointment in Mr Roos’s objections to the Department and IEC’s opposition of the application. He presumed that the IEC and DHA believed that their view of the law was correct. He noted that the Van Zyl Slabbert and Motlanthe reports were under the purview of Parliament, not Home Affairs. He noted that, if Members wanted harmonised election [cycles], this was an issue for Parliament. He appealed to the Committee to not be defeated before it started its work. During the course of its work, if an approach to the Court was needed, this was provided for.

The Chairperson noted the need for the timeframe to be determined. An integrated roadmap would be needed. This plan would determine whether there was a need to approach court. He agreed the process would be guided by political parties. He proposed that the first matter on the table after recess should be the electoral reform judgment. The Committee would allow every political party, civil society organisation or member of the public to put their views on the table. The Chairperson differed with Mr Roos’s views, stating that the Command Council was able to deal with challenges posed by the Covid-19 pandemic. Part of the Chairperson’s role was to encourage the executive. He proposed that the IEC should provide some options for consideration, not to replace Parliament but to help it make decisions.

The meeting was adjourned.

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