Electoral Reform: it simply cannot be buried this time

Parliament is halfway through the two years the Constitutional Court gave it to bring the Electoral Act in line with the Constitution, but little seems to have been done.

11/06/2021 08:08:29

Electoral Reform: it simply cannot be buried this time


Today marks the first anniversary of the Constitutional Court judgment that declared sections of the Electoral Act unconstitutional. In 2020 the Concourt ordered that Parliament must amend the Electoral Act to allow for independent candidates to stand for national and provincial elections.

Parliament is halfway through the two years the Constitutional Court gave it to bring the Electoral Act in line with the Constitution, but little seems to have been done.

South Africa has waited two decades for this electoral reform.

In 2002, the Electoral Task Team was mandated by Cabinet to “draft the new electoral legislation required by the Constitution”. It published its report in January 2003, now known as the Van Zyl Slabbert Report, but Parliament chose not to wholly implement its recommendations.

Exactly one year ago, on 11 June 2020, the Concourt ruled that the Electoral Act is inconsistent with the Constitution because it does not provide for people who are not affiliated with a political party to stand as independent candidates in national and provincial elections. The Concourt judgment is here. The case was brought by the New Nation Movement, and OUTA was an amicus curiae (friend of the court) in the case, supporting the call for electoral reform to improve accountability of elected political office-bearers. In February 2021, the Inclusive Society Institute (ISI) published an Electoral Reform Report, which the ISI said contains a potential new electoral model that “will meaningfully give effect to the judgement, respect the boundaries set out in the Constitution, retain proportionality as a basis for representation in that it best promotes inclusivity, and which enhances representivity, accountability, and transparency”. Similar to OUTA’s aims, the ISI wants to promote public engagement and provide workable solutions for an unconstitutional Electoral Act that is failing SA’s citizens. 

The Concourt gave Parliament 24 months to fix the faulty law. Today the first year is up, which means Parliament has 12 months left to do it.

Unfortunately, Parliament has put more effort into formulating excuses why that deadline will not be met than doing what needs to be done to meet it. There is no draft bill yet before Parliament and the Portfolio Committee on Home Affairs (the parliamentary committee responsible for this legislation) has been preoccupied with the other Electoral Laws Amendment Bill which has just been finalised. Excuses for delays have included the impact of Covid-19 on Home Affairs in general and on the functioning of parliamentary committee schedules (although other bills have taken virtual input from the public and been passed, such as the Appropriations Bill). The Minister of Home Affairs has suggested that the Constitution will need to be amended to effect the Concourt judgment, but OUTA believes this is questionable as the whole point of the judgment is that the existing law is inconsistent with the Constitution.

Don’t forget that this committee is still chaired by a political party appointee, Bongani Bongo, who is alleged to have attempted to bribe Advocate Ntuthuzelo Vanara to silence the parliamentary inquiry into corporate governance failures at Eskom - effectively trying to cover up state capture activities. Do such persons offer the transparency, representivity, responsiveness, and accountability that we need now? 

For many, the question remains: when the law is updated, will this improve political accountability and public services?

The basic hope is that making MPs and MPLs more directly accountable to the electorate rather than to their political parties for their positions may provide them with a greater incentive to act in the public interest. The current political party system means they prioritise doing the bidding of their parties in order to retain their jobs.

OUTA has picked up the issues of MP accountability, as well as constituency engagement and parliamentary oversight, because MPs failed to prevent state capture and the systemic erosion of the state’s capacity or willingness to responsibly spend money in the public interest.

The challenges involved, notwithstanding major elements of impunity in government we all know about by now, include the despondency or apathy of South African citizens, low youth participation rates, and MPs acting as spineless instruments of their political parties' whims. 

Around the world, there are doubts about the future of political parties in their current format, declining public confidence, and widespread calls to reconsider how the needs of citizens can be prioritised over and above party politics. How can the public be incentivised to partake in elections, especially due to the ingrained apathy and mistrust in government to affect real change? What role can politicians play in this reform? 

Any attempt by a parliamentary body to become an agent of political party interests must be rejected and admonished harshly, as it stifles inclusivity, transparency and, by extension, accountability.

To be clear, no system of government is perfect. Still, there is always room for improvement and, by no stretch of the imagination can South Africa be seen as the exception. Effective, conscientious parliamentary oversight and constituency engagement is absolutely required. 

But as it stands, since conscience means nothing for now, MPs have no material incentive to make this a reality. The Portfolio Committee on Home Affairs has, it would seem, tacitly accepted that the Department of Home Affairs should run the show and draft amendments. This is business as usual - even though Ministers, and the Executive more generally, have every reason to water down what this could mean for South Africans. Direct accountability to communities through a more independent Parliament would make life much harder for them.

Unsurprisingly then, this is fast becoming an acute case of deja vu because all we’ve seen to date is an independent panel of experts appointed by the Minister, a member of Cabinet, which will produce advice or recommendations just as the Electoral Task Team did in 2002/3.

Will we then need to wait another 20 years before recommendations are implemented in the public interest? 

All our problems will not evaporate simply by having independent MPs and MPLs, but it may go a long way in bringing us closer to the end goal of an accountable government that does not waste your hard-earned tax money and cover up obvious corruption and failures in its political party ranks.



A voicenote with comment from Julius Kleynhans, OUTA's Executive Manager: Public Governance Division, is here.