Parliament is on the verge of adopting the flawed Electoral Amendment Bill and OUTA is campaigning with other civil society organisations to increase public awareness on the reform process and the implications for our election system. We believe that even if this flawed bill is passed, it should not be the end of the electoral reform process.

Today we are publishing a research report on electoral reform, which was compiled by Dr Sithembile Mbete for OUTA and My Vote Counts. Dr Mbete is a senior lecturer in the Department of Political Sciences at the University of Pretoria, director of programmes at Futurelect, and Member of the Ministerial Advisory Committee (MAC). Based on her experience and research, she is perfectly positioned to explain the intricacies of electoral systems. She captured the history of South Africa’s journey on electoral reform since 1994, including the recommendations of the Van Zyl Slabbert report of 2003 and the MAC report of 2021. It also includes her keen observations on how the Portfolio Committee on Home Affairs handled the bill this year.

Mbete’s report calls for an active large-scale civic movement on electoral reform. “We must see this Bill as the beginning of the process rather than the end,” says the report. It calls for a survey on citizen attitudes to the electoral system, and calls for academics to “think creatively about how to comprehensively redesign our electoral system for the long term” and how constituencies should be demarcated. It also calls for youth involvement. “Any effort to reform the electoral system must have people under 35 at its centre as these changes will affect them the most,” says the report.

OUTA will host an electoral reform webinar on 30 November, which will unpack the report with an expert panel.

This report and our campaign are funded by the Konrad Adenauer Stiftung (KAS).

OUTA’s report, Research Report: Electoral Reform by Dr Sithembile Mbete is here.

OUTA’s concerns over the electoral reform process

OUTA is extremely concerned that Parliament is pushing the Electoral Amendment Bill through without regard for constitutional compliance, resulting in a bill that will benefit the ruling party.

Reports from media and civil society organisations over recent weeks make it clear there is much turmoil over this bill.

OUTA conveyed its disappointment in National Assembly’s voting in favour of the bill on 20 October 2022 (see here). The bill then moved to the National Council of Provinces (NCOP) and, on 22 October, the NCOP’s Select Committee on Security and Justice invited the public to submit written submissions on the bill, with a deadline of 9 November 2022. OUTA sent individual emails to the committee members asking whether they will also open a spacing for critical engagement between parliamentary representatives, civil society organisations and the public at large.

The lack of response from the committee was disappointing. Only one member, Mohammed Dangor (ANC), engaged with the public, in an event hosted in Lenasia on 29 October, and only one other member, Carin Visser (DA), responded with detailed information. Visser raised a key concern with the bill, which Parliament has tagged as a section 75 bill in terms of the Constitution, an ordinary bill which does not affect provinces. A bill which affects provinces should be tagged as a section 76 bill. Visser’s email feedback said: “Once a section 75 bill has been passed by the National Assembly, it is referred to the NCOP. If the NCOP amends the bill or rejects it, it goes back to the Assembly which may pass the bill again, with or without amendments and send it for the President’s assent. In other words, the Assembly can pass a section 75 bill even if the NCOP disagrees.”

The tagging as a section 75 bill was raised in many of the submissions to the NCOP. Notable is the submission by Rivonia Circle, which said that that “Provincial elections are proclaimed by the Premiers, and therefore are squarely a provincial function”, and noted that theoretically national and provincial elections could be held on different dates.

Once it is passed, the bill will be sent to the President for consideration.

The Chairperson of the Independent Candidates Association, Michael Louis remarked during the electoral reform media briefing on 9 November that, historically, it takes the President an average of 42 working days to evaluate a bill before making his decision. However, with this landmark bill, he will likely have less than 10 working days to meet the Constitutional Court (Concourt) deadline of 10 December 2022 for finalising the bill. The President faces this bill with immense public criticism, limited time to properly evaluate it, and the shadow of the ANC conference on 16 December.

If the bill is passed, it will be open to being challenged as unconstitutional. If it is not passed, Parliament will be in contempt of ConCourt.