On June 11, 2020, the Constitutional Court, the highest court in the land, ruled that as it stands the electoral act is unconstitutional since it does not allow for independent candidates to contest the national and provincial elections and by implication be elected as independent members to the National Assembly without being registered members of a political party.
A landmark ruling by the Apex court of the country, the decision comes some 20 years later following the 2003 Cabinet commissioned panel led by former veteran opposition leader, Dr. Frederich van zyl Slabbert. Giving the Parliament twenty-four months or 2 years to be more precise to undertake the process of redesigning the electoral law that allows for independent candidates to participate in the national and provincial elections has been interpreted as a vindication of what has become known as the ‘van zyl Slabbert Report’. Though with it comes an array of competing complexities that will test the durability of South Africa’s democratic landscape, institutional vigour, and voter behaviour.
The Right Move
There was never any doubt that the decision made by the justices presiding over the case was the right one. In fact it could be construed that it was just a matter of time before the recommendations contained in the Slabbert report were going to become a litmus test for redefining the country’s electoral system. While the applicants in the case must be applauded for pursuing this landmark litigation, so to must be the judiciary for preserving its autonomy and ensuring that the separation of powers remains a fundamental avatar in securing the ‘peoples’ democracy. It could not have been an easy undertaking given that at times the judiciary has been criticised for its overreach and involving itself in the executive and legislative affairs of the state. This time, however, the rational test of what is in the public interest of the South African citizens was placed as an overarching consideration above all else. But with all issues that are determined to be in the broader public interest of the electorate there are going to be hidden spaces that present inflection points that will need to be interrogated because they can create a set of unintended consequences.
The Parliament Factor
As much as the ruling opens up the space for reorienting the electoral act to reflect a greater alignment between accountability of officials holding public office and the interests of the electorate, it does so in a manner that still puts Parliament in charge of how this will be done. In setting up the terms of reference for whether a special committee or an ad hoc panel will be instituted, it remains the purview of Parliament in defining how that committee is composed and the powers that it is conferred with. This is where the proverbial term ‘kicking the ball back’ to Parliament in how the ruling is framed becomes a significant point of departure. So now all eyes will be on the Parliament process in taking forward and implementing the ruling.
In the first instance, who will make up the panel and how representative it is will be of paramount importance. This will include the composition of gender, weighting of opposition members with that of the ruling party as well as the calibre of people who will be appointed to be on the committee. Linked to the latter will be the question of the vetting process that will be used to finalise the list of members that will ultimately serve on the review committee.
The more important issue will be what measures will be taken to ensure that the panel remains impartial and not become obscured by party or personal prejudices that will arrest the process. This will prove to be a difficult job for the speaker of the National Assembly who presumably will oversee the process as she will have to face her own biasness as well as confront the criticisms of her detractors from within halls of the legislature and on the outside by civil society and other political actors. Whatever the end result will be, the process will be underpinned by sensitivity and not be an easy fait accompli. Whether the constitutional court justices could have subtly recommended an independent review panel in their judgement would have provided for some form of respite around the contested impartiality of Parliament. But then again this could be construed as the judiciary over stepping its boundaries and veering across into the lane of Parliament.
The second factor is what kind of redesign of the electoral act will the panel consider as appropriate. Once again the range and scope of a feasible framework in reforming the electoral act will be left to the parliament process to determine. Of course this does not suggest that due diligence will be ignored. Public consultations will be paramount in ensuring that the political will and voice of the electorate becomes a mainstay of all recommended outcomes regarding an inclusive electoral system.
But what will be the formula? Would it be a two-thirds majority as the Slabbert report had suggested? Or will it be more realistic to lean towards a seventy per cent constituency based representation of the national assembly? At this stage the issue remains a moot point. Despite all likely scenarios of a mixed based framework, the underling question is whether the interests of the voters will reflect who gets nominated as the next president in 2024. When all things are considered, a constituency based system coupled by a broad proportional representation framework where MPs are elected from closed lists as well as through open transparent voter preferences, the reality is that the electorate will have to trust that the elected representatives (independently elected or not) will make informed, just and moral decisions in the greater good of the public interest.
The Resource Factor
Like all elections, the big issue at play is funding. In the 2019 National and Provincial elections money was a significant driver for how many parties registered to contest on the ballots. At a cost of a flat fee of R200 000 for the national level and R45000 per province respectively, forty-eight parties were able to register for the 2019 elections. So far this remains an unprecedented historical feature in the country’s young democracy. Nevertheless, this demonstrates that money will become a critical pivot in the calculus of the financial formula of how much independent candidates will be required to fundraise to meet the Independent Electoral Commission’s (IEC) registration criteria.
Beyond the more obvious issues related to the funding question there are two immediate considerations regarding the rational test of the ruling:
- The financial nexus between the monetary campaigns/contributions of independent candidates and the Political Party Funding Act that was signed into law by President Ramaphosa in 2018.
- A ‘de factor’ revolving door concealing who is funding who.
On the first issue, it is clear that redesigning the electoral cannot be done in isolation of some extension to see how this dovetails with the fundamental legislation regarding the funding sources that political parties have relied upon for their democratic existence. As it unfolded in the 2017 ANC President elective campaign money talks and that financial incentives are, indeed, aligned to vested interests. Therefore in the case of independent candidates and their sources of financial benefactors, it is equally important to review the current legislation so that the process is applied uniformly to all actors based on transparency. This would mean that either Parliament would have to include some recommendation in its final report or that a concurrent process has to take place that complements the work of the parliament review panel.
Linked to the first is the more opaque second area that money behind election fundraising campaigns is not apolitical. Perhaps it would be naïve to think that in South Africa independent candidates would not follow the same path as elsewhere in the world where money has had more traction in how individual political candidate campaigns are shaped.
If the intention of the ruling was too ensure that voters had a say in the stature of those holding public office were ethically and morally inclined to put the public interest ahead of their benefactors or as a twist to the fable goes ‘the one who pays the piper calls the tune’ then it might be that the honourable chief justices were hoping that society would self correct where selflessness would prevail over selfishness. Only time would tell if the redesigned electoral law would mitigate against the likes of personalities like Truman Prince or Hlaudi Motosoneng and not create more emboldened shysters.
In all of this, though, there is the inherent risk that the financial field could become a battle ground for political parties, individual candidates and big money to hedge their bets before, during and following the election. What will stop the political actors from supporting one another through backdoor agreements? Or for that matter what checks and balances would be in place to ensure that some political parties may not covertly tip the balance in their favour by channelling funds through disguised ways to support campaigns of independent candidates? And better still, what prevents financial influencers from funding both political parties and independent candidates to make sure that all bases are covered?
The Race Census Debate?
Finally there is the perennial race census debate regarding the characterisation of the country’s electoral landscape. It remains unclear whether introducing an electoral redesign will shift voter behaviour away from its apartheid past of voting taking place along racial lines. It may very well be that a constituency or mixed system will intensify group/ethnic identity. But at this stage it maybe more speculative than a foregone outcome. What is at stake, however, is that voting patterns will be informed by the way the electorate will perceive the quality of independent candidates and the element of trust. The latter will remain a key factor in determining voter support and alignment based on lessons learnt from the previous elections, especially the 2019 performance of political parties, where Ramaphosa was more popular than the Party overall is instructive. Therefore personality attraction could be one consequence that will define voting patterns.
Two years is not a long time for such a momentous ruling to be put in place. The groundwork in initiating the Parliament process has to begin immediately. At the same time the IEC has to also start preparing its own logistics so that it is organisationally ready to expedite voter and civic education, training and capacity building of observers in understanding the practical implications of the redesigned act while ensuring that voters are made aware of significant changes to the electoral landscape. But perhaps the most essential aspect for the IEC focus is on voter registration. Getting people to register is one thing, whether people will go out and vote is another. Will a change in the electoral act change the dynamics of voter apathy and disaffection? Would it be a stretch to assume that adding independent candidates into the mix will miraculously see numbers in voter turnout increase? Again all this remains theoretical for the moment until the type of model is finally agreed upon and tested.
Undoubtedly the ruling of the esteemed Constitutional court judges was a defining moment in the country’s democracy. Even before the Parliament process finalises the type of electoral redesign that can be suitable for the country, we should brace ourselves for more litigation to be set in motion because this is the way the nature of the issue has been set. It might be even plausible to assume that an extension of the two-year timeframe could be requested. And then there is the other point that no one probably wants to think about and that is whether former Presidents can reconstitute their political ambitions as independent candidates? Perhaps the constitutional court ruling should be viewed as a trilogy of processes with the immediate one being the Parliament Process with sequels to follow.
Sanusha Naidu is a Senior Research Fellow the Institute for Global Dialogue associated with UNISA.
This article was first published in the Democracy Development Program (DDP) 22 June 2020