It won't be possible to change Electoral Act without amending constitution: Motsoaledi

Home affairs minister Aaron Motsoaledi has warned that it will not be possible to make changes to the Electoral Act without amending the constitution.

Parliament and the government are in a race against time to effect changes to the Electoral Act and other related laws to enable independent candidates to contest provincial and national elections.

The Constitutional Court found that exclusive party proportional representation could no longer be used. It gave parliament 24 months to correct defects in the Electoral Act, meaning the legislature and the government have until June 2022 to meet the court-imposed deadline.

A joint meeting of parliament's home affairs portfolio committee and the select committee on security and justice was briefed about possible scenarios to overhaul electoral legislation after the ConCourt’s ruling in June that declared parts of the Electoral Act unconstitutional.

The four scenarios presented by a parliamentary official, which were drafted with the assistance of government officials, were based on the assumption that no constitutional amendment would be required.

Adam Salmon, content adviser for the home affairs portfolio committee, said if the amendments to the Electoral Act require a constitutional amendment, all the timelines and scenarios he presented would push the dates back and parliament would probably not meet the ConCourt deadline of June 10 2022.

Salmon said his colleagues in the government had indicated that when the amendments are introduced, they will be introduced with concurrent amendments to subsequent legislation like the Political Party Funding Act and Municipal Demarcation Act, among others.

“I can put it to you, chairperson, that from the little that we have studied, it is going to be impossible not to amend any part of the constitution if we have to bring this into consideration,” said Motsoaledi in response.

“There are quite a number of areas in the constitution which need to be amended, so the assumption that we can carry on all this without touching the constitution is next to impossible, as far as I am concerned.”

Motsoaledi said he would ask President Cyril Ramaphosa to allow his cabinet to put aside some of the normal processes they follow when considering proposed legislation, to fast-track the processing of the proposed amendments. “Because I think this is an emergency for everybody and that they will understand,” he said.

Motsoaledi said a similar process was being followed with regards to the Electoral Laws Amendment Bill, which was introduced to the cabinet on June 24 and would affect next year's local government elections.

He said he wrote to Ramaphosa and motivated for the bill to be dealt with urgently. As a result, it will be discussed on Thursday and the cabinet will approve it for public comment.

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