Electoral Amendment Bill: DHA, IEC & Legal Advisors input; with Ministry

Meeting report

Ms M Modise (ANC) was appointed as Acting Chairperson as the Chairperson would be arriving late.

Constitutional and Legal Service Office (CLSO) Response to Submissions
Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, took the Members through the CLSOs response to the public submissions received on the revised Electoral Amendment Bill. These submissions were based on the second round of public input on the Bill. The Committee has already deliberated most of the issues raised in the submissions, and in many instances, decisions have already been taken. The CLSO has been in contact with the Electoral Commission (IEC) and is in agreement on many issues.

Clause 1

Several definitions within this cause were called into question in the submissions. This included an issue with the definition of “person”, which the submissions argued should mean “citizen” and not just a “natural person.” However, “person” cannot be defined to mean “citizen” as the term “person” as used in the Act is not restricted to only “citizens”; it is used in the Act to mean even a person who is not a citizen.
They proposed the following amendments:

1. “Candidate” means a natural person contesting an election, or a natural person nominated on a list of a [political] party contesting an election, as
the context requires;
2. “Independent candidate” means a natural person contesting an election and who is not nominated on a list of a [political] party.

Submissions also argued that the term “political party” should replace the term “party” to be in line with wording in the Constitution as section 19 refers to a political party. While it is noted that section 19 of the Constitution uses the term “political party”, there are other sections in the Constitution which only use the term “party” (eg. Sections 47(3)(c)). The term “party” in the Electoral Act is also consistent with the terminology in the Constitution.

Clause 4

Submissions claimed that the requirement that an independent candidate must submit names, identity numbers and signatures of voters who support the candidate totalling 30% of the quota for a seat in the previous election, is too high. This amounts to unfair discrimination and unjustifiably limits the right to contest elections, and is a barrier to entry.

Counsel for DHA has previously advised that the quota is too high. The signature requirement may be necessary to determine the seriousness of an independent candidate to contest an election and to avoid a lengthy ballot paper but it should not be a barrier to standing for elections. The quota number should be reasonable.

The submissions also took issue with the deposits outlined in Section 31B(3)(b). They requested that the Bill state the amount of the deposits to be paid, or that the payment of deposits be abolished. The Bill allows the Commission to determine the amount of the deposits to be paid. The amount of the deposit was left for the Commission to determine because this amount can change over time and it is easier and faster to amend the regulations, as opposed to having such an amount put in an Act which has to undergo a longer legislative process to amend.

Schedule 1A – Item 22

The Bill proposes a re-calculation method in the event of a vacancy, which violates the principle that the electorate is entitled to be represented in the NA by the representative of their choice. This favours larger political parties. The submissions called for an option of a running mate system where an independent candidate (IC) can nominate a potential replacement before the election.

During deliberations and on advice from the IEC, it was agreed that by-elections were not practical during a term, as they are administratively burdensome and costly. The committee was discouraged by using a running-mate, as voters may not want their candidate replaced as they voted for that particular person. This may not reflect the will of the people. Additionally, some ICs may not want a running mate.

Schedule 1A - Item 7 (2)(a) and (b)

The discarding of an ICs excess votes cast in other regions which do not meet the highest figure limits proportional representation. The solution would be to recognise current municipality districts and metros as constituencies instead of nine provinces as regions.

An IC cannot occupy more than one seat at a time. Once the minimum number of votes required to secure a seat is determined, all additional votes may not practically be utilized. The dignity and personhood of those voters who vote for an IC are not infringed. The will of their vote manifests in the occupation of a seat by their chosen IC, regardless of whether their vote counted towards the appointment of the IC or whether their vote forms part of the excess votes that went towards the appointment of that IC, but was discarded due to the IC gaining a seat.

Schedule 1A – Item 7 (2)(c)

Aggregation of IC votes across regions is unconstitutional as it prevents ICs from meeting the requisite vote threshold to obtain a seat. It violates the right to equality as political parties are awarded seats based on all votes received but not ICs.

This provision could arguably be interpreted as infringing upon the Constitution's section 19 (3). The Committee has been told in the past that if a provision differentiates between people or categories of people, it must bear a rational connection to a legitimate government purpose or it will be deemed unconstitutional. What is the purpose behind preventing an IC from aggregating its votes? Why would an IC be allowed to contest more than one region for an NA seat, but only the votes of one region meeting the threshold are considered for a seat and not the votes obtained in the other regions?

(See the presentation for more detail).

Electoral Commission Response to Submissions
Mr Sy Mamabolo, Chief Electoral Officer, IEC, took the Members through the Commission’s response.

The central claim of submissions relating to seat calculation is that the Bill will lead to disproportionality, thus violating sections 46 and 105 of the Constitution. Studies of electoral systems generally agree that perfect proportionality, meaning an electoral system where each party receives exactly the same share of seats as it received of the votes, is unattainable. Some deviation from perfect proportionality is unavoidable. South Africa’s electoral system is ranked among the most proportional in the world and relatively few votes are wasted.

Five main issues were raised in the submissions, such as:

The allocation of regional seats is biased in favour of larger parties

While the argument is mathematically correct, it is important to keep in mind that most electoral systems tend to reward parties with large electoral support except where contestants with small support bases are protected, for example, through minority quotas. The Bill does not fundamentally violate the principle of proportionality. Moreover, a review of the examples provided in the annexure to the submission suggests that the bias has a measurable effect only in extreme cases.

The provisions allowing independent candidates to contest multiple elections disenfranchises voters and is biased towards larger parties

The argument is mathematically correct. When an independent candidate forfeits a seat in the provincial legislature in favour of a seat in the national assembly, the former is reallocated as described in the Bill. It may benefit parties with large electoral support. This does not fundamentally violate the principle of proportionality.

Defective re-calculation method

The Submission proposes that “vacancies can be filled by using the original seat allocation calculations, and allocating the seat to the party or candidate with the highest Remainder out of those parties and candidates that have not yet secured a Remainder seat”. This does not seem advisable, as it could theoretically allocate seats to contestants with few votes in the elections. Also, during the 5-year term, remainders may be depleted. Without a re-calculation, there could be a shortage of remainders to allocate seats to.

Based on the submissions, additional refinements were proposed to optimize the seat calculation formula. These refinements concern Item 7 2(a) and (b), Item 12(d), Item 22, and Item 23.

(See presentation for more detail).

Department of Home Affairs Response
Minister Aaron Motsoaledi explained that the memorandum was composed by state law advisors after he sought their advice. He is still waiting for further clarification and guidance.

Some of the most substantial changes made to the A-list are:
Making provision for filling vacancies in seats allocated to independent candidates
Permitting independent candidates to contest more than one region
Specifying that an independent candidate requires the signatures of voters totalling at least 30% of the quota for a seat that was required for a seat in the previous comparable election

Filling vacancies

Holding by-elections would not be workable or financially feasible across an entire region or province whenever a vacancy arises. The A-List proposes that the votes from the previous election will be used to fill the vacancy as follows: the votes and seats allocated to the independent candidate causing the

the votes and seats allocated to the independent candidate causing the vacancy will be disregarded
the result for the region or provincial legislature would be recalculated, respectively;
the vacant seat would be awarded to an eligible independent candidate or party that contested the preceding election.

While it is true that a seat allocated to an independent candidate that is vacated could be allocated to a political party and not another independent candidate, that is the system that best reflects the will of the voters. If, for example, the seat was to go to the next eligible independent candidate, that could, in theory, be a candidate who only received one or two votes, instead of a party that received many thousands. That would not fulfil the requirements of proportionality.

ICs contending more than one region

The A-List states, “If the same independent candidate receives a seat in more than one region, the candidate is awarded the seat in the region where he or she received the most votes.” Consideration should be given to stating that the candidate would be awarded the seat in the region where they received the highest proportion of votes, rather than the greatest number of votes per se. A rule that awards the seat with the greater proportion of votes better gives effect to the voice of the voters.

The signature requirement

The Portfolio Committee has proposed that Parliament should adopt a formula in the legislation to determine the required number of voter support with reference to a percentage of the quota for a seat in the previous election, and has landed on 30%. This percentage is too high. The previous quota for a seat in the National Assembly was approximately 44 000. Assuming that a similar quota would occur in future, it would require an independent candidate to demonstrate the support of 14 667 voters to contest an election. It may be impossible for an independent candidate to obtain such support. Such a high threshold would arguably be an unjustifiable limit of the section 19 rights of citizens to contest an election as independent candidates. Political parties require less than 10% of the number of signatures to register than independent candidates would require to contest a single region in an election.

(See presentation for more detail).

Discussion
Mr K Pillay (ANC) supported the proposed change of definition for “person” in Clause 1, as well as the removal of the word “political” from “political party.” Regarding the proposal that “political liaison committee” should be replaced, they have deliberated much on this. They agreed that this was just a matter of language and he proposed that they should stick to “liaison committee.” They should definitely not replace it with “Candidate’s Liaison Committee” as this could cause issues again. However, if the Committee wanted to replace it with “Election liaison committee”, he would not have a problem with it. With regards to the signatures in Clause 4, 1000 signatures are too low. It opens the electoral system to vulnerability. If they agree that 30% is too high, 25% would suffice, as a state law adviser suggested. The determination of a deposit amount must remain with the IEC and should not be determined in the Bill. The motivation for this is that the deposit may change from time to time and amending this when it is a part of the Bill would be a long process. The current proposal to fill a vacancy is fair and constitutional. Legal advice has informed them that this is a fair process. This part of the Bill should remain. By-elections cannot be done if they are not using constituency-based systems. Some critics have said that all municipalities should be constituencies. He does not understand the logic of this. How does one person provide support to an entire municipality? It’s really far-fetched. It was clearly spelt out that the forfeiting of votes is actually a forfeiting of seats. This is clear because candidates only receive one seat. If a candidate gets a certain number of votes, they will receive one seat, and that is it. A candidate is not able to hold another seat. This is the same for both political parties and independent candidates. They are not being treated differently. Political parties also have to meet a threshold; if they do not have enough votes, they cannot get a seat.

He agrees that one can not aggregate votes. It becomes an unfair process. For political parties on a provincial to national scale, their seats are only calculated on the votes that they receive from that province or region. It cannot be different for independent candidates and they should not be able to aggregate votes across regions. It is clear that this is in terms of compensatory seats, and in local government where independent candidates are contesting, they don’t contest the PR; they only contest the ward. He does not understand what makes it different. If one claims that aggregation must happen, how come it is not aggregated when contesting at a ward level? If someone wins the ward, they win the ward. This same process should be followed now. He supports the votes not being aggregated.

Ms A Khanyile (DA) supports a 20% signature requirement. They have discussed the issue of deposits previously and they agree that independent candidates should pay a deposit, determined by the IEC.

Mr A Roos (DA) said it was encouraging to see the public participating in submissions and thanked them for their participation. He agreed with the input given on Clause 1. Political parties and ICs would fit under the description of “partisan.” The Committee has always said that independents should choose one region. There is a lot of talk about direct accountability and responsibility and the DA has always argued that candidates who stand in a party must choose one province. The candidate will be representing their constituency and must live within that province or region. Michael Atkins has pointed out the issue of allowing candidates to stand in multiple regions. It has a lot of unforeseen consequences. The DA’s position is that a sunset clause should be considered which states that after the 2024 election, full electoral reform needs to be considered. Constituencies are not a matter of splitting the country into more areas and moving people there. Many nuanced arguments need to be considered, such as how a Member of Parliament can be held accountable in a constituency for municipal issues. This needs to be dealt with in a much bigger discussion. It is not as simple as saying ‘this person is an MP, they’re in this constituency, and if they don’t perform they are fired.’ This needs to be deliberated on. A sunset clause is needed as there is no time to deliberate this further in the current electoral timetable.

With the signature issue, there are two options. The first is to look at percentages, as they have discussed. The other option is to look at the 1000 figure and determine whether this is a sufficient number. This is the figure that is in place to register a political party. There have been valid concerns about setting an appropriate bar. The lowest option presented by the IEC was 20%, which the DA agreed with. Instead of setting one requirement for political parties and another for independents, they should consider setting one figure for both political parties and independent candidates. They have deliberated at length on the deposit and there has to be one set by the IEC. The IEC made a point about independent candidates potentially paying a lower deposit than political parties and they should consider this. One also needs to consider the equitable share. If the candidate is successful, the deposit is paid back. The money is not lost. It is required to run the election and then get paid back. Political parties raise funds to fund their operations so that they have the ability to contest an election. The IEC needs the additional finance as more and more parties participate in an election. The idea of not paying a deposit at all is unfair.

In the submissions, a comment was made that an independent candidate vote is a vote that rejects party politics. However, this is not a certainty. There could be a situation where someone votes for a candidate in their area because they know them and support them as an individual, but if that person wasn’t running, they would vote for a political party. One cannot formulate this legislation on the assumption that a vote for an independent candidate is a vote that rejects political parties. Once a candidate has been allocated a seat, the will of all of those voters has been satisfied. Part of the issue of aggregating votes is that it is wrong to, for example, use the votes of Northern Cape voters to select a Gauteng candidate. It is problematic to aggregate votes in this way. In general proportionality, the person who made this submission claimed they had carefully selected numbers to get a result. It would be very valuable for the Committee to receive a presentation on this mathematics and its workings. It is a large part of the judgement to ensure general proportionality. It has been claimed that there are serious distortions. If they do not explore this and make sure that they’ve exhausted this matter, it could be problematic if this is taken on and it is later found that there has been some distortion. They need to ensure for themselves that there is nothing extremely untoward here. The system proposed is really complex and technical and it is a headache to explain to anybody. Anytime “re-calculate” is mentioned, that refers to changing the quota. This needs to be explored properly. He requested a caucus. The caucus could be after this, after they have received a response before they make a final deliberation on the amendments. 

Mr T Mogale (EFF) said the 30% signature requirement is reasonable. They do not want to find themselves with a lengthy ballot paper of over 100 independents. 1 000 signatures are too few. Lowering the requirement would create issues. The EFF has raised concerns with the verification process of the list. A system where someone can sit down with the roll and copy all the names and ID numbers, and claim that these people will vote for them is not good. The verification process that the IEC is going to put in place needs to avoid these kinds of issues. There should not be a difference between the deposit amount for ICs and political parties. All candidates are contesting for the same thing.

The Chairperson arrived and greeted the Members and various stakeholders. He appreciated the work that had been put into the responses. The deliberations would not be completed in this meeting because of a parliamentary sitting that would begin soon.

Response from the Parliamentary Legal Service, IEC and DHA

Adv Njikela said that the issue of signatures seems to be contentious. There was a suggestion that the percentage of signatures be left to the IEC to determine. The Committee needs to consider this carefully so that it does not appear to be delegating plenary powers. They have noted what the Members said about aggregation of votes, the issue of signatures and the support of the Clause 1 amendments. They are happy with the progress that has been made so far.

Ms Sarah Govender, Senior State Law Advisor, Department of Justice and Constitutional Development, said that a signature percentage of 25% was raised, but this was not suggested by the office of the State Law Advisor. They support the presentation that was made by CLSO. They will be guided by the deliberations of the Committee and the drafting proposals shown today when finalising the A list.

Ms Janet Love, Vice-Chairperson, IEC, said that for some time, the IEC had indicated a readiness to offer a presentation on their mathematics to the Committee. The Committee should decide if and when they want this to occur. The IEC would not be opposed to a sunset clause. This could provide a strong sense of clarity on a range of issues, including those mentioned by Mr Roos.

Mr Mosotho Moepya, Commissioner, IEC, said that the IEC has taken note of the comments made by the Members. There are some refinements proposed for Schedule 1A which deal with precision and which provide more clarity. It is not clear what presentation is outstanding from the IEC concerning the application of the different formulas. He needs clarity as to whether this is an existing presentation that Members have not received, or whether it is a new presentation. To his knowledge, there is no outstanding presentation that they have not presented. In a presentation by the CEO, they explained the Droop method and how it is applied, using historical data. They also did this with the Hare method. The IEC intends to create a system, as they do for candidate nomination, where an independent will capture the persons who support them. Once the ID numbers are put into the system, it will keep a running tally. It will tell them whether they’ve reached the required threshold and what identity documents qualify. This system will be made easily visible to the ICs.

Ms Love said that in the last national elections, around 48 political parties contested. There is still the same number of political parties that made it into the National Assembly, both provincially and nationally. If they made the signature and deposit amount too low, they could find themselves in a situation where they need a ballot paper that looks like a book. This would undermine truly informed participation in the election. There needs to be a balance. They do not have a clear formula or solution at this stage. This matter requires engagement. She suggests that they balance the aspirations of ICs with having a meaningful and realistic ballot paper.

Minister Motsoaledi said that the DHA would not oppose reducing the signature percentage requirement to 25% or 20%. As the IEC has said, there needs to be a balance. They need to deliberate on the input of the public with regards to barriers for ICs, and the issue of having an overly long ballot paper. They need to determine whether a court of law would view this as a barrier to the participation of independents, or whether it would see that they are trying to ensure a meaningful ballot paper. This balance is very difficult to get correct. He would be okay with deliberating again on a new percentage to ensure this balance. He would also be okay with Members discussing the figure of 1000 signatures.

With regards to the proposed amendments and issues with Clause 1, if a natural person is defined as a citizen, then he will be satisfied. Most of the rights in the Bill of Rights use the word “everyone”, except the sections that address political rights. In this case, the word used instead is “citizen.” They should stick with the Constitution, unless the Bill specifies that “natural person” means the same as “citizen.” When it comes to electoral matters, it must be clear that only citizens can participate.

Adv Njikela said that a natural person refers to a human being. A candidate can be nothing other than a human being.

The Minister said that in that case, he is against using the word “natural person” in Clause 1. They can discuss it in the next meeting.

The Chairperson said that this is not possible. Adv Njikela needs to finish his response.

Adv Njikela said that the candidates are human beings. This is the distinction that they are trying to make. He sees that the Minister feels strongly about it. It will not be difficult for them to reach out to the DHA and have a discussion so that in the next meeting, they can present the Committee with the outcome.

The Chairperson thanked the stakeholders and Members for their contributions and responses. All IEC presentations have been presented to the Committee; there are no outstanding ones.

Mr Roos said they may need a further presentation on the mathematics used by the IEC. This possibility is still open. They will deliberate on these issues further in the next meeting so that they can take a stance. They have not yet arrived at a stance on including a sunset clause.

The meeting was adjourned.