Ten of the 14 political parties represented in parliament have petitioned President Cyril Ramaphosa, calling on him not to sign the Electoral Matters Amendment Bill into law.
The parties say the proposed law is unconstitutional and that Ramaphosa should remit it to the National Assembly for reconsideration.
The bill seeks to amend five pieces of legislation — the Electoral Act, the Electoral Commission Act, the Electoral Communication Act, the Financial Management of Parliament Act, the Provincial Legislature Act and the Political Party Funding Act.
The changes are meant to provide for independent candidates to contest national and provincial elections and for them to be funded for their political activities and for participating in national and provincial elections.
This is a result of the Constitutional Court’s 2020 ruling which found that parts of the Electoral Act were unconstitutional as it pertained to independent candidates contesting national and provincial elections.
The opposition parties complain that the proposed amendments go far beyond regulating and facilitating the inclusion of independent candidates in the electoral system.
“A totally different issue was raised at the last minute, which is the reversal of the formula for the distribution of public political funding was amended, with disastrous consequences for smaller political parties.”
The proportional allocation is determined by dividing each of the amounts contemplated in the regulations proportionally among the represented political parties in accordance with the number of seats awarded to each party in the National Assembly and the provincial legislatures jointly, while equitable allocation is determined in the following manner:
- The amounts contemplated in the regulations must be allocated to the national and each of the provincial legislatures in proportion to the number of members of each of those legislatures; and the allocation to a particular legislature must be divided equally among the represented political parties in each of those legislatures.
The opposition parties say the formula has been amended in the Electoral Matters Amendment Bill, and with great urgency and without any rational basis, the amendment reverses the interpretation of “equitable” and “proportional” allocation of public funding to represented political parties back to the 90% proportional and 10% equitable.
“This fundamentally impacts upon the rights and legitimate expectations of smaller political parties and undermines the intention of the constitutional provision which is to enhance multiparty democracy.”
The meaning of the phrase “equitable and proportional” funding to enhance multiparty democracy has not been tested, or determined, by the Constitutional Court.However, it is submitted that the urgent reversal of the formula at the last minute before the 2024 elections, without any legitimate or rational purpose, would undermine section 236 of the constitution, said the parties in the petition.
They said the amendment to the allocation of public funding does not “enhance multiparty democracy” and, in fact, has the opposite effect.
“It constrains multiparty democracy and entrenches incumbency.”
The parties also charge that the process adopted by the National Assembly’s portfolio committee on home affairs and the NCOP’s security and justice committee did not facilitate meaningful or reasonable public involvement as required by the constitution.
The bill was first introduced in parliament on December 8 2023. Advertisements calling for public comments were published on parliament's website and on social media on December 14 2023, and again on January 11 2024, calling for public comments by January 26.
Radio adverts were only aired from January 24 to 26 — commencing two days before the closing date for public comment.
The opposition parties say there were no public hearings and only those who made written submissions by January 26 were invited to make oral representations, on a virtual platform, on February 6, while the date, time and access to this virtual meeting was not advertised.
“We submit that interested parties were not provided with a reasonable opportunity to participate in the process, at all, nor in a manner in which they may influence decisions.
“While the consequential amendments required for the inclusion of independent candidates in the 2024 elections introduced urgency into the public participation timetable, we submit that the inclusion of substantive amendments, not required for that urgent purpose, renders the public involvement processes unconstitutional.”
The parties said the timing, haste and process of public involvement, adopted by parliament, did not reasonably or meaningfully meet the constitutional obligation to facilitate public involvement as a material part of the lawmaking process.
“Accordingly, we submit that the legislation is invalid.”
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