Electoral Act may be technical and complex, but price of doing nothing far greater
We live in an undeniably overwhelming era of news overload all over the world, where attention spans and information retention have become shorter, often at our collective expense.
We often wake up too late on developments whose adverse effects we could have played a more effective role in either stopping or weakening. The “slowly boiling pot effect” of adverse climate change is an example, but that is a discussion for an entirely separate column.
For South Africa – the country of much of my focus, thanks to my almost existential fears – ongoing discussions concerning the South African Electoral Act are reflective of such a case, but there are several others.
Hopefully, many who have paid attention will recall that back in December 2018, the Independent Candidate Association’s Michael Louis and others instituted a challenge to the old electoral act. At the core of this challenge was the failure by the act to enable the contestation of national elections by independent candidates who would be accountable to citizen constituencies instead of established political parties.
Not in their interest
The Constitutional Court issued a judgment in 2020, declaring the Electoral Act invalid, and gave Parliament 24 months to make amendments to accommodate needed changes. While the Constitutional Court judgment was not prescriptive in detail – as it would be seen as one part of the state, the judiciary, interfering with the work of another part, Parliament – it was nevertheless clear.
However, given the nature of the judgment, established political parties represented in the National Assembly – not just the perennially misgoverning African National Congress – had a lot to lose from seeing the advent of independent candidates into a space they have for almost 30 years considered their own only to play in. It is reasonable to suspect that they would not see it to be in their respective party interests to enthusiastically go ahead and effect needed amendments of the old Electoral Act to widen the contestation space for independent candidates. So they bid their time before getting on with the task.
It is common cause that South Africans overall have become tired of a political and electoral system that allows only established political parties, not direct citizen constituencies, to send representatives to the National Assembly. The status quo has been unconstitutional and, consequently, undemocratic in that South African parliamentarians, irrespective of which political party they represent, are solely accountable to the whims of political bosses and the parties they lead, which they clearly believe to be the buttered sides of their bread and not the electorate.
The citizens of South Africa have therefore been used as voting fodder, taken for granted, and taken on a meandering political joyride for almost thirty years by politicians who claimed to love and act in their best interest while almost everything crumbled around them.
These parliamentarians have demonstrated on several occasions that they will stand for the political parties that deployed them, even when such parties insist that they vote on key national issues to protect and enhance party positions against clearly threatened national and public interest.
Following several delays, an amended electoral bill was finally presented to the president to sign, which he finally did in February 2023, despite complaints by more than 77 civil society organisations that insisted he subjects it to a constitutional test before making it law.
More than 30 standing committee hearings have been attended by civil society groups, at least five formal submissions made to Parliament and the National Council of Provinces, and a joint petition made to the president, but all efforts have thus far fallen on deaf political ears.
Something is wrong with the system
Parliament’s reaction, of which all standing committees are dominated by the ANC’s political deployees, therefore at the beck and call of the party’s bosses, is a sign of something truly wrong in the working of South Africa’s once globally celebrated democracy.
In mature democracies, parliamentarians would have stood with the people instead of being motivated only by concerns about which side of their personal bread is buttered, and voted out of prudency to let the Constitutional Court (South Africa is a constitutional democracy, not a parliamentary democracy) have a final say in the constitutionality of the amended act which, many forget, is the result of a ruling by it.
Civil society’s opposition is premised on the fear that while, on the surface, the Electoral Amendment Act appeared to respond to the concerns that led to the Constitutional Court issuing its ruling back in 2020, a deeper reading of it told a different story. The act is facing two challenges in the Constitutional Court.
