Electoral Amendment Bill: key issues for consideration
17 May 2022
Chairperson: Mr M Chabane (ANC)
Tracking the Electoral Reform Legislation in Parliament
In this virtual meeting, the Parliamentary Content Advisor highlighted several key issues to help guide the deliberations on the Electoral Amendment Bill. These matters arose during previous engagements and in the responses by the IEC and Department of Home Affairs. Issues that were mentioned include, replacing vacant independent candidates' seats with the candidate that received the next highest number of votes, the feasibility of having by-elections and voluntary associations or running mates.
Parliament’s Constitutional and Legal Services indicated that it did not prepare a formal presentation but gave comments on pertinent issues. This included the terminology used in the legislation, which needs to be inclusive of independent candidates, the allowance of agents for political parties but not independent candidates and the requirement that an independent candidate who wants to contest an election for either a region or a province must be ordinarily residing in that region or province.
The Committee decided that it was premature to deliberate the matter as a formal presentation was not provided. An understanding was reached that a presentation would be circulated to the Committee, the IEC and the Department after which deliberations will take place.
While the Committee was supportive of the bill to give effect to the Constitutional Court judgement in the New Nation Movement judgement, it was agreed that the process would not be rushed and that the motion on the desirability of the bill would be adopted at a later meeting.
The Chairperson greeted and welcomed the committee and all stakeholders. He greeted the Independent Electoral Commission of South Africa (IEC) team, the Director-General (DG), the team from the Department of Home Affairs, and officials from the Parliament’s Constitutional and Legal Services (PLS). In this meeting, the Committee will continue with the work in line with what was discussed in the last committee meeting. The Committee had received a comprehensive response to the public hearings from the IEC and the Department of Home Affairs. In the last meeting, the PLS agreed to formulate a subsequent response to the response of the IEC and the Department of Home Affairs (DHA). He noted that the PLS has, however, not formulated a final response due to the fact that Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, PLS, is off sick. The Committee will therefore receive a short brief on the issues that are being considered by PLS.
The issues that were brought up in the responses by the IEC and DHA will be highlighted by the Content Advisor for the committee to engage and deliberate on. The Committee may deliberate on the Motion of Desirability (MOD) so that it can move to adopt the motion in the next meeting.
The DHA systems were down on May 16, he asked that the DHA Director-General comment on the matter as it compromises the work of the DHA.
He added that some members may need to leave the meeting early to attend the Plenary taking place at 10 am.
The Committee Secretary said that there were apologies from Ms L van der Merwe (IFP), who is travelling, and Adv Njikela, who is not feeling well. Mr A Roos (DA) said that Ms A Khanyile (DA) is having technical issues but will be joining the meeting.
The Chairperson noted these apologies.
Briefing by Content Advisor
Mr Adam Salmon, Committee Content Advisor, said that he would highlight some issues for consideration on the Electoral Amendment Bill to help guide the deliberations as they continue on from the meeting that was held on May 13. He noted that this was not an exhaustive list.
1. Why is the requirement for the determination of the number of signatures required or the deposit needed for independents left to the IEC to formulate in the regulations when it is an issue of policy concern? Could the formula for the determination of signature requirements or deposits not be included in the bill?
2. A proposed amendment to Chapter 5 of the Electoral Act is needed to allow for independents to have agents during elections. A draft proposal from either the IEC or DHA on what such inclusion would look like would be needed in order for the Committee to decide if it should be included.
3. By when can the changes needed to the Electoral Commission Act to allow for independents to be represented in liaison committees be tabled? Will this be done in time for the next general election?
Consequential amendments will be needed to allow for independent candidates to be represented on liaison committees. A draft proposal for amendments and by when the amendments could be implemented will need to be drafted.
4. If going with the DHA proposal of replacing vacant independent candidates' seats with the candidate that received the next highest number of votes; will it not be argued that this gives political parties the benefit of replacing their seats with chosen candidates next on their list; whereas the independents and their support base could now be replaced by a political party or an independent with a completely different ideology?
5. Given that replacing independents with candidates they have no influence on, and without by-elections could be argued to be unfair in court; what objection do the IEC or the DHA have to the Private members' electoral bill proposal to have votes transferable to the person's specified by the independent prior to the election?
6. The IEC should draft a proposal for inclusion in the bill of the three-ballot system for National Assembly Compensatory; National Assembly Regional and Provincial Legislature either with a requirement for being ordinarily resident in the region for all candidates or removal of this requirement for all candidates. Again, a proposal for these amendments will need to be tabled.
7. How would it be responded in court to the objection that the major disadvantage of independents having their surplus votes discarded, effectively means they have no choice but to run as parties which then means the bill does not truly fairly address the Constitutional Court ruling for the inclusion of independents?
8. On which calculations or historical numbers is it stated that having by-elections for replacing independents would be costly and lead to constant by-elections. What are the numbers from Local Government? What percentage of candidates die or retire from office?
9. The objection raised by some submissions to the forming of Political Parties to allow them to have a list that would give them access to more seats and a replacement should they vacate seats; is that this would compromise their stance on being independent, hence the call for voluntary associations or prescribing running mates prior to elections. The DHA indicates that Section 18 of the Constitution does not require such voluntary associations, but neither does it require Political Parties. Section 19(1) allows for forming political parties and 19(3) allows for any adult citizen to stand for public office.
10. It is argued that requiring independent candidates to need signatures of support, but not political parties is an unfair disadvantage particularly given that independents have less financial or organisational support compared to established parties to prevent chance takers and high numbers of candidates. In order to make this fair and to improve accountability shouldn't this requirement be introduced for political parties?
11. Can an example be shown using previous election results how the IEC proposal would work to restore proportionality by determining the national quota by dividing the total valid party votes by 400 plus 1 minus independent seats allocated. The result, plus 1 disregarding fraction is the national proportional quota?
Parliamentary Legal Advisor Input
Ms Daksha Kassan, Parliamentary Legal Advisor, PLS, said that due to the fact that Adv Njikela is off, a PowerPoint presentation has not been prepared, she apologised for this. They have, however, looked at the response that the DHA gave on Friday and will discuss PLS’s viewpoint on some of the responses.
She explained that in the presentation on May 6, there were four issues that the DHA had to respond to. The first issue was whether the understanding was correct that the Bill does not prevent independent candidates from associating and forming parties, as defined in the act, and therefore being able to contest for the compensatory seats. The DHA confirmed that that is indeed the situation. PLS would like to clarify, that the DHA said that due to Section 15a of the Electoral Commission Act being repealed no one could have contested the last local government elections in terms of that revision. The Amendment Act of 2021, which repealed Section 15a of the Electoral Commission Act also inserted a new Section 15, subsection 7 that provided that any party that was registered for a particular local municipality on the date on which the Electoral Laws Amendment Act of 2021 came into operation must be deemed to be registered in respect of that district municipality. It is assumed that that was the provision under which these associations contested the local government elections.
On the issue of filling the vacancies when the seat of an independent candidate becomes vacant, the DHA agreed that the Bill should address the filling of the vacancy and that the manner of how this vacancy is filled is a policy decision. Options on how this should be done have been presented by both the DHA and IEC. This will be for the committee to deliberate on to see how best the vacancy can be filled.
On party liaison committees, the DHA has agreed that the bulk of the amendments regarding the function of these committees will need to be made in the regulations. PLS agreed with this. The term in the Act, party liaison committees, will need to be amended so that it does not only indicate a party liaison committee but that is also inclusive of independent candidates. The DHA has indicated that some of the regulations have already been amended to apply to independent candidates as well.
Regarding agents for independent candidates, she noted that the DHA is in agreement that allowing political parties to have agents, but not independent candidates is a differentiation without justification. The DHA has proposed alternative approaches in the event that having too many agents at a voting station might complicate the management of the elections. These proposals are for the Committee to discuss during deliberations.
She noted that the PLS disagreed with the DHA on the residency issue. There were many submissions raised by the public on the requirement that an independent candidate who wants to contest an election for either a region or a province must be ordinarily residing in that region or province. A further provision in the Bill also requires that independent candidates submit a signed deceleration confirming that their residential address is situated within the region or province they intend to contest. This requirement is unfair as there is no similar requirement for a party candidate nor are these requirements set out for an independent candidate contesting wards in the local government elections. The PSL did note the DHA’s response that the Bill includes the same requirements for party candidates and that the Municipal Electoral Act does require an independent candidate to be resident in the ward. Respectfully, this is not correct. There is no residence requirement for a party candidate as the wording in Section 27 (2) (cA) relating to a party candidate is very different to the wording in relation to an independent candidate. For the party candidate, it only requires the candidate to be registered as a voter in the region while, with respect to independent candidates, it requires them to be both a voter and resident in the region. There is no residency requirement for an independent candidate to contest a ward in local government elections. The section that the DHA was referencing refers to the nominator of the independent candidate to be resident in the ward. On this issue, the IEC also made this point and suggested that an independent candidate, who is a registered voter, be entitled to contest the regional elections in all nice providences while also highlighting the possible practical difficulties. Alternatively, the IEC suggested that if the aforementioned is not practical that both independent and party candidates be subjected to the same requirements. This matter requires further deliberation from the committee.
The Chairperson asked that a formal presentation be submitted once Adv Njikela recovers. The matters raised should be included in this presentation for circulation purposes. He asked if the IEC would like to comment on the issues raised. Could the members provide input on how to proceed with the process?
Mr K Pillay (ANC) said it may be premature to have discussions if the Committee has not had proper input or presentation from PLS. Anything that is discussed will come back to a legal opinion. Whatever the Committee does must be within the legal framework to avoid any legal challenges. He proposed that the Committee wait for PLS to provide a formal presentation before starting deliberations.
Mr A Roos (DA) remarked that in the engagements up until this point, there had been recommendations for quite substantial changes to this legislation. Once those amendments are made it needs to go to the National Assembly and be re-advertised for comment. It would be helpful to receive those proposed changes, as the Content Advisor suggested, to make sure that the major changes that are proposed and agreed upon by the Committee are in that draft; and that the Committee is sure what version of the legislation is being dealt with.
The Chairperson agreed with Mr Roos on his point but said that he was asking the Committee to advise on the point tabled regarding how to proceed with deliberations. Ms Kassan and her team will work on the presentation and circulate it to the Committee, the IEC and DHA. In the next meeting, once the MOD is adopted, the Committee will proceed with deliberations and deal with the issues raised. It would not be correct to ask the IEC and Committee to comment on the notes that were presented by the PLS as the official presentation and points discussed may differ in the end. He asked the Committee to advise on whether the IEC should comment now or if it should be dealt with in the next meeting after the vote on the MOD.
Mr Roos agreed with Mr Pillay’s proposal. Although there is time pressure, these important processes should not be rushed.
Ms M Molekwa (ANC) agreed with Mr Pillay’s comment.
Ms L Tito (EFF) concurred with what Mr Pillay said.
The Chairperson noted the submissions by the Members.
Ms Janet Love, Deputy Chairpersoon, IEC, noted that in Mr Salmon’s presentation there were some requests for examples of calculations. Once the IEC receives such requests, the information will be forwarded to the Committee for further deliberation. On proposals that the IEC needs to assist in drafting, once the Committee decides how it wants to proceed the IEC will stand ready to assist. Lastly, when speaking about an association of independents there seems to be the conflation of an association of independents and independent candidates forming a political party. There is already provision for the latter, forming an association is something different and the committee should provide guidance on that. Other than that, the IEC is ready when the committee is ready.
The Chairperson asked Ms Kassan to confirm that there is an understanding that PLS would formulate a presentation which will be circulated to the IEC and the Committee. He agreed with Mr Roos that the process should not be rushed and that the issues should be sufficiently dealt with.
Ms Kassan confirmed with the Chairperson.
The Committee Secretary said that, as the Chairperson indicated, the Committee needs to decide whether it will proceed with the deliberations. In terms of Rule 286 i, which states, ‘after due deliberation must consider a motion of Motion of Desirability on the subject matter of the Bill, and if rejected must immediately table the Bill and its report Bill’ and 286 j, ‘if the MOD is adopted must proceed to deliberate on the legislation’. In other words, the Committee has advertised the Bill, done provincial public hearings, received submissions, and received presentations from PLS, the IEC and DHA. The Committee, therefore, has clarity on what the Bill seeks to achieve and must now decide before it can deliberate on whether to proceed with the legislation or not.
The Chairperson noted that this is the rule on how the Committee must proceed with deliberations. He invited members to comment on the Bill and said that the Committee Secretary will table the MOD at the next meeting for adoption.
Mr Pillay moved for the adoption based on the understanding that the adoption of the MOD and deliberation will take place in the next meeting.
Ms Molekwa noted the comments that were presented.
Mr Roos commented, that to give effect to the Constitutional Court judgement on the New Nation Movement judgement, this is something the Committee needs to proceed with.
The Chairperson concluded that the Committee would proceed with the deliberations. The Committee has agreed that it must proceed to affirm the directive that the Constitutional Court has directed Parliament to correct in terms of the Electoral Act. He requested that the Content Advisor and the Committee Secretary bring the MOD forward in the next scheduled meeting so that it may be adopted. In the same session, the committee will receive comments, as requested, and the PLS will submit comments beforehand.
Mr Salmon noted that the next meeting will be on May 20. The Oversight Report also needs to be adopted as a part of a new formal requirement.
The Committee Secretary said that the next meeting will be on Friday (May 20), the IEC will be briefing the Committee on the 2021 Local Government Election Report. He suggested the matter of the vacancy be added to the agenda.
On the issue of the IEC commissioner candidates, the chairperson said, the matter has been tabled with the Speaker of Parliament who has referred it to the portfolio committee. The Committee has received the report and resolved that time needs to be spent looking at CVs and to look at the process that was undertaken, to ensure that it was sufficient. There were two requests last year for an IEC Local Government Election report which is important as there will be a budget vote on Tuesday (May 24). These are the two items for the meeting on May 20.
The Chairperson thanked all the stakeholders and members present.
The meeting was adjourned.
No related documents
Chabane, Mr MS
Khanyile, Ms AT
Molekwa, Ms MA
Pillay, Mr KB
Roos, Mr AC
Tito, Ms LF
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