Electoral Amendment Bill: deliberations
03 June 2022
Chairperson: Mr M Chabane (ANC)
Tracking the Electoral Reform Legislation in Parliament
In this virtual meeting, the Committee had a broad discussion on the main issues that were raised in public hearings and which needed to be considered in the deliberations.
The Committee resolved to refer legal matters to the Parliamentary Legal Services and State Law Advisors for clarification. Matters of a technical nature were referred to the Independent Electoral Commission (IEC) for comment.
The Committee was mindful of the Constitutional Court deadline and scheduled time for further deliberations during Parliament’s upcoming recess period. A response to the request for an extension of the deadline was still pending. The programme of the Committee had been revised to provide for further deliberations and the finalisation of the report on the Electoral Amendment Bill by 28 June 2022.
The Chairperson remarked that the Committee had received comments, post the public hearings on the Electoral Amendment Bill. The discussion should be informed by submissions from stakeholders, i.e. the IEC, Department of Home Affairs (DHA), and Parliamentary Legal Services (PLS), who have zoomed in on issues that would impact legislation and on which the Committee must deliberate. The session would take a broad view on issues but would not attempt to formulate a decision on matters at this stage. Although Parliament would be rising on 15 June 2022, the Committee must continue to work on this matter to finalise the process according to the deadline determined by the Constitutional Court. The Committee was awaiting a response to the request for a postponement of the deadline. Within the context of timelines, the Committee must consider adequate time allocation to interface with the NCOP and the President. The Committee would interact with the team of State Law Advisors for clarity on legal issues and would request the IEC to respond to issues outside the framework of the legal team and the DHA. A session would be arranged with the IEC for responses to technical issues that would impact legislation. There is an understanding of Act 73 of 1998 and how Parliament needed to correct it. The work must continue based on the Motion of Desirability (MOD) that was adopted. Members would be allowed time to reflect on the subject matter in case of a need for further consultation. The Chairperson advised the legal team to inform him of any issues not identified by Members.
Presentation on issues for consideration in Electoral Amendment Bill deliberations
Mr Adam Salmon, Committee Content Advisor, presented some of the main issues that were raised in public hearings and which needed to be considered in the deliberations.
Clause 1: The need to clarify the definition of a region compared to a province and the need to redefine Party Liaison Committees (PLCs) as Liaison Committees or Electoral Liaison Committees.
Clause 4: to bring independent candidates on par with political party candidates in terms of the following requirements;
not to be resident in the region where they are registered to contest elections,
not to comply with signature requirements,
not to pay the same deposit amount as political parties,
the formulation of signature and deposit requirements by the IEC or if it should be included in the Bill, and
the increase or decrease of the three-month cooling-off period as it related to membership of a political party.
Clause 11: covers the following issues;
the retention of the 50/50 ratio of regional and compensatory seat allocation,
reference to constituencies as in the Van Zyl Slabbert report or the Lekota Bill,
the retention of the three-round regional seat allocation according to the Droop formula as per the IEC proposal,
the forfeiting of seats if political parties do not have the required number of candidates after an election,
the inclusion in the bill of the three ballot system with a residential requirement for all candidates or the exclusion of this requirement for all candidates,
addressing the objection that independent candidates may be disadvantaged by having surplus votes discarded, and
the running of by-elections to replace independent candidates.
A further matter to be considered for inclusion in the Bill was the need for independent candidates to have agents at voting stations during the elections.
The Chairperson noted that all of the issues might not be exhausted in this session. He requested Members to highlight and isolate issues that could be tested with the legal team. Issues for the attention of the IEC would be identified and referred to the Commission to deliberate on.
Ms L van der Merwe (IFP) said the term province was clearly understandable and should be used instead of region. She agreed that there was a need to redefine PLCs to include independent candidates. It would be unfair to require independent candidates to submit a number of signatures. The legal advice on residency requirements for independent candidates should be revisited because there was no such requirement for political parties.
Ms A Molekwa (ANC) agreed that the term province should be retained. The three-month cooling-off period was sufficient and should not be extended because it would suppress some candidates.
Ms Van der Merwe agreed that the three-month cooling-off period should suffice. It would be unfair to require independent candidates to raise the same amount of deposit as political parties because it might exclude them from running for elections. The Committee should reconsider what needs to be done regarding this matter.
In reference to the cooling-off period, the Chairperson said the view was expressed in the public hearings, that the same treatment in terms of processes must apply to local government elections. This matter required further reflection.
Mr A Roos (DA) thanked the Content Advisor for the helpful summary. He said the terminology of region and province had been widely used in the past without problems. He suggested that a review should be done if the term region was referred to in other related acts. The issue of whether independent candidates are being disadvantaged by the residency requirements had been debated a few times. The IEC suggested that independent candidates should be allowed to stand in all provinces where they qualify to stand and not where they reside.
The Chairperson asked Mr Roos to clarify his last point.
Mr Roos said according to the IEC response on the matter, independent candidates should be allowed to stand for elections in all provinces provided they pay the deposit and secure the votes. The transfer of votes to running mates needed further clarification. The Constitutional Court judgement stated that independent candidates should be able to participate without being negatively impacted by requirements. There has been a big outcry about signature requirements. The idea that signature requirements should be extended to political parties was not unfair. However, the concern was about long ballot papers in the absence of qualifying criteria. The deposit was helping to carry the cost of having a person on the ballot. It was not an unreasonable request for someone to raise funds and to prove ground support. He questioned if someone would be entitled to receive an equitable share without paying the deposit. He suggested that the IEC should verify the three-month membership period and indicate how long the verification process would take. The Committee made good progress on clause 11. The proposed seat allocation was a step in the right direction. There was no requirement in the Constitutional Court judgement to review the issue of constituencies. The Committee should therefore take a pragmatic view on the matter for future amendments. There was agreement that it would be constitutional to have by-elections to allow for the replacement of independent candidates who become incapacitated. Independent candidates should have the option to form voluntary associations to pass on their votes. But Members should be aware of the unintended consequences and not make assumptions on behalf of voters. A voter might vote for a political party if the independent candidate of choice was not available. The next party on the list with the highest number of votes should be considered as a replacement. It will be useful to have a better understanding when the amendments on seat allocation and replacement of vacant seats of independent candidates are received from the IEC.
Ms A Khanyile (DA) remarked that it was important to consider independent candidates having agents to man voting districts on their behalf. The IEC should provide guidance on this matter.
Mr K Pillay (ANC) drew attention to the fact that independent candidates chose to contest as individuals. The whole discussion would be of no value should they decide to form associations. It was important to have a holistic view and to understand the points raised by the legal services to avoid future legal challenges. On the issue of deposits, he said some political parties had only one seat but paid the same amount of deposit as other political parties with more seats. The independent candidate would be entitled to a refund if he/she garnered enough votes. Criteria should be in place to contest elections based on legislation. The number of signatures to be included in the Bill needed further deliberation so that it could not be legally contested. It was in the best interest of the country to not rush the process because of deadlines. The amendments would change the entire political landscape. The Committee should get it right at the first attempt. Further deliberations were required on all of the clauses. The repercussions of what was included in the Bill and the impact thereof on other pieces of legislation must be unpacked. He proposed a point-by-point deliberation and finalisation on each issue. He agreed to the inclusion of independent candidates but not on a constituency basis because it would impact demarcation changes which could take up to two years to finalise. The aggregation of votes, which was raised by Mr Roos, was an important point that the Committee might have missed in past discussions. He understood that if elections were contested for a regional or national seat, the candidate might only be reflected in the provincial legislature. He asked for guidance from legal services on what the framework would be in terms of a fair process. He advised Members to start thinking about the influence of the Bill on other pieces of legislation and whether the proposed changes would be achievable.
The Chairperson cautioned Members to be mindful during deliberations. He sensed that the discussion about the timeframe and not rushing the process might be wrongly interpreted. The Constitutional Court has given Parliament a timeframe to outline procedures and the Committee did not want to short circuit the process. Members must be properly informed when a policy decision is taken about which option to submit to the National Assembly. The Committee may need to strongly motivate with facts the position on the constituency electoral system, which may require a long period of time. The Committee needed to draft a balanced submission informed by issues emerging from responses to issues that were raised. Other clarity seeking questions which required contributions from the IEC and legal team would be addressed with the relevant stakeholders. He called on the State Law Advisors to comment on legal issues which they might have identified in the discussion.
Adv Suraya Williams, Principal State Law Advisor, Office of the Chief State Law Advisor, said nothing unconstitutional was identified. She noted that a number of issues were policy-related. The State Law Advisors were waiting on the draft proposals from the IEC and relevant stakeholders and would take guidance from the IEC on consequential amendments as a result of point 10, under clause 11.
Ms Kassan Daksha, Parliamentary Legal Advisor, said the legal team was available to comment on any draft proposal of amendments.
Adv Siviwe Njikela, Parliamentary Legal Advisor, said the issues being discussed had been dealt with before. The knock-on effect on other pieces of legislation needed consideration.
The Chairperson replied that Members were reflecting on the issues based on responses received from all stakeholders.
Mr Mosotho Moepya, Commissioner, IEC, said the IEC would welcome receipt of the summary of issues and would be available to give input in writing by Friday, 10 June 2022. He suggested a review by the Committee of the draft issues proposed by the IEC.
The Chairperson said the IEC input would assist the Committee to make decisions on the points that were raised. He requested the IEC to return to the Committee for an elaboration on the Droop formula so that Members could familiarise themselves with the issue of seat allocation.
Mr Roos said it would be useful to receive the Excel spreadsheet with timelines in order to get an update on how many days were left for the process.
Ms Van der Merwe supported the proposal by Mr Pillay to debate each point, reach a consensus and take a Committee decision for further deliberations.
Mr Pillay enquired from Mr Eddy Mathonsi, the Committee Secretary, whether the agenda for the next meeting would allow enough time for submissions before further discussions.
The Chairperson said the work of the IEC should not impact the work of the Committee. IEC issues would be isolated and circulated to all Members. Policy positions that must be reflected in the Bill should be considered with concrete evidence. In the meantime, the IEC, PLS and State Law Advisors must assist the Committee to speed up the process of submitting the report to the National Assembly.
Mr Pillay and Mr Roos supported the Chairperson’s proposal.
Approval of the revised programme
The Chairperson requested the Committee Secretary present the revised programme of the Committee.
Tuesday, 7 June 2022: Further deliberations on the Electoral Amendment Bill.
Friday, 10 June 2022: No meeting was scheduled due to the planned budget vote.
Tuesday, 14 June 2022: Clause by clause deliberations on the Electoral Amendment Bill.
Tuesday, 21 June 2022: Consideration and adoption of the A-list of the amendments.
Tuesday, 28 June 2022: Consideration and adoption of the report on the Electoral Amendment Bill.
The revised programme was approved.
The Chairperson drew attention to the proposal by the IEC to submit responses by 10 June 2022 which coincided with the day of the budget vote. He asked Members to consider having a meeting on the day.
The Committee Secretary said the budget vote was scheduled for 10:00 and suggested that the meeting could be scheduled for 14:00.
The Chairperson undertook to submit the item to the MANCO and to communicate the feedback to all Members. He emphasised the need to speedily finalise the discussion on the responses by stakeholders. He requested the Content Advisor to include the input on options that had been submitted by other political parties and stakeholders. The focus should be on getting a report from the IEC regarding challenges in terms of issues submitted and not on the post-2024 framework.
Mr Roos said he was referring to the roadmap when he made a reference earlier to the Excel spreadsheet. He was concerned that the Committee was running out of time.
The Chairperson agreed that the Committee should deal with the subject matter in terms of a timeline which Mr Pillay and Ms Van der Merwe proposed. He thanked Members for their contribution and for the referral of some of the issues to the PLS and State Law Advisors. He concluded that the process of interfacing with the subject matter has begun.
The meeting was adjourned.
Chabane, Mr MS
Khanyile, Ms AT
Legwase, Ms TI
Molekwa, Ms MA
Pillay, Mr KB
Roos, Mr AC
van der Merwe, Ms LL
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