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A tall order for parliament, with six months to redraft the electoral law

21 June 2022 - 17:32
The Constitutional Court found in June 2020 that exclusive party proportional representation could no longer be used and ordered parliament to correct the defect in the Electoral Act. File photo.
The Constitutional Court found in June 2020 that exclusive party proportional representation could no longer be used and ordered parliament to correct the defect in the Electoral Act. File photo.
Image: Antonio Muchave

A mountain of work awaits parliament as it seeks to complete the amendment of the Electoral Act to allow independent candidates to contest provincial and national elections.

The Constitutional Court found in June 2020 that exclusive party proportional representation could no longer be used and ordered parliament to correct the defect in the Electoral Act within 24 months. Parliament missed that deadline and was granted a six-month extension by the court earlier this month.

The home affairs portfolio committee, which is processing the Electoral Amendment Bill, continues with its work while parliament is in recess. It received briefings from the Electoral Commission (IEC), department of home affairs and state law advisers on Tuesday on possible amendments that need to be made.

MPs and government officials agreed clarity was needed on some key issues in the proposed law, including the number of seats, allocation of seats, costs of registration and constituencies. Other sticking points include questions on:

  • whether independent candidates will have to pay the same deposit paid by political parties contesting elections, given that they only qualify for one seat;
  • whether they can contest elections in more than one region; and
  • how to or who would fill a vacant seat when an independent candidate dies.

The legal teams of both parliament and the state law adviser indicated these are policy decisions the IEC and government will have to take.

The current version of the bill proposes that where there is a vacancy created because somebody (an independent candidate) has passed away or has resigned, the seat should only be filled at the next election.

Parliament senior legal adviser Siviwe Njikela warned MPs, saying the electoral system should be designed in a way that enfranchises people.

“If people have voted for a candidate and that candidate, for whatever reason, is no longer able to fulfil that function, is it fair and constitutional to keep that seat vacant for the  remainder of the term, or should there be a system that will ensure the seat is filled based on the will of the people?”

He said the principle of one man one vote and each vote counting equally has to be upheld.

Njikela acknowledged there have been practical issues raised in terms of how cumbersome it may be for the electoral system to have to fill a seat by means of a by-election each time an independent candidate is no longer able to keep his or her seat.

“We defer to the department in as far as that issue is concerned,” he said.

The IEC’s proposal is for the vacant seat to be allocated to the party or a qualified and available independent candidate with the highest remainder of votes in the relevant regional election.

“The quota to fill a vacant seat is recalculated according to the same formula, except that the vacant seat(s) and votes cast for the previous incumbent as well as independent candidates already holding seats are disregarded. The same process of highest remainders will also be followed for seats not allocated during the first round,” said IEC chief electoral officer Sy Mamabolo.

The IEC and department of home affairs have agreed that independent candidates should be allowed to appoint agents. This will broaden the scope around the issue of party liaison committees and will allow independent candidates to have agents who observe elections and counting, among other things.

MPs suggested a workshop be held where they could learn more about the proposed policy changes.

Parliament has until December 10 to make sure an amended law is in place.

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