Do modern problems require modern solutions: A consideration of the constitutional challenges to the Electoral Amendment Act

Do modern problems require modern solutions: A consideration of the constitutional challenges to the Electoral Amendment Act

In our article published in newsletter # 39/2023, we identified the opportunities and challenges proposed by the Electoral Amendment Act of 2023 (“the Amendment Act”), specifically relating to the allocation and representation of seats by independent candidates in the National Assembly and Provincial Legislature. The constitutional court has recently pronounced on this issue in the recent case of Independent Candidate Association South Africa NPC v President of the Republic of South Africa & Others (CCT 144/23). The implication of this judgment will undoubtedly impact the 2024 elections.

For refresher context, in June 2020, the constitutional court, in the case of New Nation Movement NPC and Others v President of the Republic of South Africa, held that the Electoral Act of 1998 (‘the Act’) was invalid and inconsistent with the Constitution to the extent that it excluded independent candidates from running for political office and holding a seat in the National Assembly. However, the constitutional court elected to suspend the declaration of invalidity for a period of 24 months to allow Parliament to remedy the Act and ameliorate the constitutional infringement.

That judgment brought about the enactment of the Amendment Act, which allowed, inter alia, for independent candidates to contest for seats in the National Assembly. Schedule 1A of the Act was inserted into the Act by the Amendment Act, which schedule sets out the system of representation (by independent candidates and candidates from political parties) in the National Assembly and Provincial Legislature.

Independent Candidate Association South Africa NPC v President of South Africa (CCT 114/23)

In this case, the applicant challenged the seat allocation in item 1 of schedule 1A of the Act, as amended by the Amendment Act. According to the item, the votes are split into two categories: regional seats (which are allocated to independent candidates and regional political party candidates) and compensatory seats (which are only eligible for allocation to candidates of a national political party). Two hundred seats are allocated for each respective category.

The applicant took issue with independent candidates being limited to compete for 200 regional seats and argued that independent candidates would, as a result, be required to earn more votes to secure a single seat in the National Assembly compared to political parties. They contended that the 200/200 split was irrational and unconstitutional and infringed on various sections of the Constitution, including inter alia the rule of law, the right to proportional representation, and the right not to be unfairly discriminated against.

Change to a 350/50 split

The primary remedy sought by the applicant was to amend item 1(a) of schedule 1A of the Act (the regional seats category), to read that 350 seats are available for allocation instead of “half” (viz. 200 seats). Similarly, the applicant sought for section 1(b) of schedule 1A of the Act (the compensatory seats category) to read that there are 50 compensatory seats available for allocation instead of “half” (viz. 200 seats). Put differently, the applicant sought the constitutional court to amend the regional and compensatory seat allocation from a 200/200 split to a 350/50 split.

One vote using a single ballot

Prior to the Amendment Act, South African citizens could only cast one vote using a single ballot that listed the contesting political parties. However, a citizen’s vote for a particular political party counted once towards the regional seats and once towards the compensatory seats. However, the key amendment brought about by the Amendment Act is that first-time voters will be presented with two ballots and have a tactical opportunity to split their vote between regional and compensatory ballot (or vote for the same political party on both ballots if they choose).

The constitutional court held that one cannot discount the possibility of vote splitting with the introduction of a second ballot. However, there is an underlying risk of “overhang”. As described by the constitutional court, “overhang” occurs when the election formula requires political parties to be allocated more seats than what is actually available in the Legislature. Put differently, overhang occurs when a party wins more regional seats than the compensatory or national party vote entitles it to. This, in turn, has implications for proportional representation. In a Legislature of 400, overhang of one would indicate that, after applying all the relevant formulas in the legislation, 401 seats have to be allocated. The rationality of the 200/200 split therefore hinges on whether (a) it results in proportional representation, in general and (b) avoids the risk of overhang.

The Court’s Analysis

The court held that the 350/50 split gives rise to a foreseeable risk of overhang. The risk of overhang of one seat is at its greatest where independent candidates obtain 1% support. The risk of overhang reduces as support for independent candidates increases. Data evidence from previous elections placed before the court by the applicant indicated that parties with strong regional support have a noticeable risk of a single-seat overhang. The implication is that political parties with strong regional support may be awarded a seat based on the regional ballot while not being awarded a seat in the National Assembly based on the final seat allocation for political parties.
In addition, the Electoral Commission indicated that should the risk of overhang materialise, it would not be able to declare an election and any declaration of the election results where overhang occurred would likely be challenged in court.

In deciding whether to grant the proposed 350/50 split amendment to the Act sought by the applicant, the court employed the rationality test. The threshold imposed by the test is that ”decisions must be rationally related to the purpose for which they are given. This is an objective enquiry. A court is not allowed to substitute its own opinion as to what it thinks is appropriate. ” In this case, the rationality test turned on whether the 200/200 split results in proportional representation in general and whether it avoids the risk of overhang.

With the 350/50 split, the court erred on the side of caution and held that the risk of overhang in the applicants’ proposed amendment outweighed the potential benefits. Further, the court reasoned that the Constitution is clear that there are only 400 seats to be allocated in the National Assembly and that, in the event of overhang in the current political climate, the only viable remedy would be to make an additional seat available. However, allowing an extra seat to be allocated would require a constitutional amendment which is wholly impractical.

Conclusion

Although the applicant in the above discussed case proposed a ‘modern solution’ to mitigate the ‘modern problem’ of an iniquitous number of votes that an independent candidate may require to obtain an impactful representation in the National Assembly, the risk of overhang would undoubtedly require a constitutional amendment to accommodate an extra seat, should that risk materialize.
One cannot overlook that a constitutional amendment of that nature would take years to implement. This may also give rise to potential instability throughout the country and be detrimental to the proper governance thereof, given that the determination of a final election would remain in the balance pending such constitutional amendment.

It’s therefore commendable that the constitutional court adopted a cautious approach in the case of Independent Candidate Association South Africa NPC v President of South Africa; especially given that amendments to the Electoral Act have an impact on the lives of every citizen in the country.
The challenge that the constitutional court is faced with in the above case ultimately turned on the following premise: does fairness for independent candidates outweigh the practicality and efficient functioning of the electoral system? One believes that the constitutional court correctly prioritized the latter for the greater good and the needs of citizens, while balancing fairness to independent candidates in a manner that does not adversely affect the rights of all citizens. In the country’s current political climate, modern problems would not require modern solutions. Instead, the rights and well-being of citizens remains paramount.