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For the fourth time, OUTA tells Parliament the electoral bill isn’t good enough

On 27 January 2023 OUTA submitted comment to the Portfolio Committee on Home Affairs criticising the Electoral Amendment Bill. This is OUTA's fourth submission to Parliament on different versions of the bill, and again identifies problems in both the bill and the process. The committee will rush through all the public comments this week.

OUTA’s submission calls for a clearly constituted Electoral Reform Consultation Panel which includes civil society and with predetermined deadlines and deliverables, for greater fairness for independent candidates, for the votes of all citizens to count, and warns that if the bill fails to meet constitutional standards it may be legally challenged.

OUTA’s submission highlights concerns over the signature requirement for independent candidates and the consultation panel. Initially independent candidates were expected to procure signatures equaling 20% of the quota for a seat (based on a previous comparable election), approximately 8 500 votes. OUTA and other civil society organisations believe this presents a major barrier to entry. In all our previous submissions appeals were made to further reduce the percentage requirement. In the amended bill, Parliament addressed this not by decreasing the percentage but by increasing the percentage of signatures required by parties who do not yet hold seats in national or provincial legislatures. Incumbent parties do not have to provide signatures.

Retaining this barrier for independents and lifting the barrier for unrepresented parties not only does not address this issue, but further entrenches the position of parties already holding seats.

A second item of concern is the proposed establishment of the Electoral Reform Consultation Panel, which sounds eerily familiar. Back in 2021 the Minister of Home Affairs, Dr Aaron Motsoaledi, established the Ministerial Advisory Committee (MAC). The aim of MAC was to help develop policy options on the electoral system that address the defects of the Electoral Act 1998 and, in June 2021, it produced the MAC report.

Now we have MAC version 2.

The amendment to the bill, clause 23 dealing with the Electoral Reform Consultation Panel, requires the panel to “(a) prior to the 2024 elections, engage in research and consider the issues falling within its functions; (b) after the 2024 elections, undertake a public participation process regarding the issues falling within its functions; and (c) from the date of its establishment, submit a report to the Minister every three months on its progress”.

Why is another panel being established to achieve what the first one set out to do? Why is another round of research on different electoral systems needed? Why must we wait until after the 2024 elections to engage in public participation and consultations?

The panel is included in the amended bill, meaning it is mandated by Parliament to achieve its targets. However, these targets are very loosely defined, such as “(4) The Panel must, within 12 months of the date of the 2024 elections, submit a report to the Minister on the possible options for electoral reform for the election of the National Assembly and the election of the provincial legislatures”. The Minister did not base the bill on the majority recommendation of the MAC into consideration when he introduced it to Parliament in January 2022 and nor did the Portfolio Committee on Home Affairs when it voted against the Electoral Laws Second Amendment Bill (B34-2020) introduced by opposition MP Mosiuoa Lekota back in December 2020. There is more than ample research by South African scholars available, as reflected in the OUTA Electoral Reform research report (see here). What certainty do we have that the portfolio committee will seriously consider research, public participation and evidence towards achieving meaningful electoral reform? What guarantees do we have that they won’t cause further delays towards the 2029 national and provincial elections?

The timelines and responsibilities are vague, open to manipulation and could result in similar delays in proper electoral reform for the 2029 national and provincial elections.

OUTA wants the Electoral Reform Consultation Panel to include civil society organisations. The panel must ensure public participation takes place regularly and in an informed, inclusive and educational manner. The public’s interests must be at the forefront of all reform considerations. The timelines and due dates set must be made very clear, together with repercussions or penalties should the Panel, the Minister or the portfolio committee fail in their duty to conduct oversight and ensure adequate electoral reform.

It is unfortunate that the first opportunity presented by the Concourt in June 2020 against the original June 2022 deadline was not utilised to its full potential.

Speed-reading the public comments

This week the Portfolio Committee on Home Affairs meets to discuss the public comment on the bill, just days after the comment deadline of 27 January 2023.

On 1 February, the content advisor briefs the committee on submissions received so they can be discussed.

On 2 February, the committee will receive responses from the Department of Home Affairs, the Electoral Commission and Parliament’s legal services.

On 3 February the committee will discuss it further.

On 7 February the committee expects to adopt the bill and its report.

How possible is it for the committee to really take the public’s commentary into meaningful consideration? We can safely assume no changes will be drafted based on the submissions received. This results in yet another tick-box exercise.

More information

A soundclip with comment by OUTA's Parliamentary Engagement and Research Manager Rachel Fischer is here.

OUTA's submission is here.

Read more about OUTA's previous work on electoral reform here.

The Constitutional Court judgment in the June 2020 case brought by New Nation and others can be found here.