To make meaningful change in any country, the government needs to spearhead and support the proposed changes. For the ordinary citizen looking to contribute to large-scale social change, the possibility of entering politics seems daunting. Even more so when, traditionally, one would have to affiliate themselves with a political party. Presently, it is difficult for one to find a political party that wholly aligns with their personal political goals, and often, some are placed in a position to adapt their goals and aspirations to align with that of the political party. Fortunately, citizens no longer face the internal dilemma of choosing a party with which they align to actualise their independent goals while benefiting and serving the citizens of this country while doing so.
This article will discuss how the Electoral Amendment Act 1 of 2023 (“Electoral Amendment Act”), which has been published in the Government Gazette on 17 April 2023, opens the door for ordinary citizens to be elected to national and provincial legislatures without being members of a political party and to contribute towards policy and other decisions made to the benefit of the greater public.
What Prompted the Amendment Act?
In terms of section 18 of the Constitution, every person has the right to freedom of association. However, what is often overlooked is that this constitutional right also embodies the right to not associate with any group or organisation, as the case may be. The same applies in politics. While one may have the right to choose with which political party to be associated, our traditional electoral system forced government executive candidates to join a political party in order to qualify for election into power.
In June 2020, the Constitutional Court (CC) dealt with the case of New Nation Movement NPC and Others v President of the Republic of South Africa and Others 2020 was heard. The issue before the CC was whether channelling membership in political parties infringed certain rights under the Bill of Rights by individuals who opt to be independent candidates, such as the right to freedom of association, and adjoined to that is the freedom to not associate if one chooses otherwise. The applicants further sought an invalidation of section 57A of the Electoral Act 73 of 1998 (“the Electoral Act”) as well as schedule 1A, as, when read together, these provisions provide that the schedule applies generally to the National Assembly and provincial legislatures. The schedule itself makes provision for the party-list proportional representation system, which was our traditional electoral system, and omits any potential for application of the Electoral Act to an unaffiliated independent candidate.
The court held as follows:
“Thus, insofar as the Electoral Act makes it impossible for candidates to stand for political office without being members of political parties, it is unconstitutional.”
In essence, this means that the Electoral Act is unconstitutional to the extent that it was mandatory for adult citizens to be affiliated with and members of a political party if they sought to be elected to the National Assembly or provincial legislature. The court reasoned that this mandatory membership requirement in the Electoral Act infringes on an individual’s political rights and the right to freedom of association enshrined in the Bill of Rights.
How South Africa’s Electoral System Traditionally Operates
In terms of the party-list proportional representation electoral system, at a national level, the number of votes a party receives determines the number of seats that the party occupies in parliament. The gist of the system is founded on the basis that the political party that obtains the majority vote would have the power and authority to appoint a candidate of their choosing. Similarly, at the municipal level, there is a mixed-member system in which wards elect individual councillors from those named in the party lists at the national level.
While political parties are seemingly a representation of the will of the majority, over the years, the South African national government has been occupied by the same political party since 1994, consistently obtaining the majority vote after elections. The issue with this system is that it was nearly impossible for independent candidates to be voted into power and obtain a seat in the National Assembly or provincial legislatures.
How will the Electoral Amendment Act change the traditional system?
The Electoral Amendment Act proposes to introduce various important developments to our electoral system. Firstly, the Act defines an independent candidate as “a South African citizen contesting an election and who is not nominated on a list of a party.”
Secondly, the Electoral Amendment Act provides requirements with which an independent candidate wanting a seat in the National Assembly or Provincial Legislature must comply. An independent candidate may only be elected to one seat in the National Assembly and for the provincial legislature in a province in which that candidate is a registered voter, provided that the candidate may only be eligible to be a member of either the National Assembly or provincial legislature. While this seems like a promising amendment, it raises the question of fairness when it comes to support for said independent candidate. How is an unaffiliated independent candidate supposed to gain enough votes to secure more than a single seat without the support and resources that the vast majority of the powerful political parties have? Without this, the independent candidate is simply limited to just one seat without any prospects of gaining more representation within those spaces.
There is also an additional challenge to only having one seat. For example, when a motion is tabled in the National Assembly or provincial legislatures, the person who introduces the motion requires support for said motion to be passed. In the party-list system, it is easy to gain support when one has the support of their fellow party members, who hold numerous seats. However, for an unaffiliated independent candidate with only a single seat, they may be placed in a position where they would need to gain the favour of members of other political parties, particularly the ruling party with the largest majority, and in doing so, they may appear as if they are aligning with said party. This would definitely raise issues of fairness. How would a single seat be able to introduce and mobilise enough support to achieve the idealistic, large-scale social change one would hope to bring? These are practical concerns that would hopefully be addressed by the legislature in terms of regulation.
It is important to note that any person who is eligible to vote may qualify for election to the National Assembly. This means that any person who is 18 years of age or older and is a South African citizen may run as an independent candidate. However, the National Assembly expressly excludes the appointment of the following groups, amongst others, into office:
- anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than
- the President, Deputy President, Ministers, Deputy Ministers, and
- other office-bearers whose functions are compatible with the functions of a member of the Assembly and have been declared compatible with those functions by national legislation.
- permanent delegates of the National Council of Provinces,
- unrehabilitated insolvents,
- people who have been declared mentally unsound; and
- people who have been convicted of an offence and sentenced to more than a year in prison without the option of a fine after October 1996.
Thirdly, the Electoral Amendment Act provides for objections to independent candidates. These objections provide that any person, including the chief electoral officer, may object to the nomination of an independent candidate on the following grounds: the nominated candidate is not qualified to stand in the election; the nominated candidate has failed to submit the prescribed acceptance of nomination signed by the candidate as contemplated in section 31B(4) of the Electoral Act, or if there is no prescribed undertaking, duly signed by the nominated candidate, that they are bound by the Electoral Code of Conduct.
More notably, the Electoral Amendment Act sets out the obligations for independent candidates to abide by the Electoral Code of Conduct and stipulates a reformulated allocation of seats in the National Assembly, as well as the reallocation of seats should seats be vacated.
Fortunately, the Electoral Amendment Act is not the only form of change the presidency is introducing. In addition to the aforementioned changes, the Electoral Amendment Act also requires that the Minister of Home Affairs establish an Electoral Reform Consultation Panel (“the panel”) within four months of the amendments being gazetted. The purpose of the panel is to consider and make recommendations for further reform to the electoral system after the 2024 elections.
Conclusion
What is encouraging is that the Electoral Amendment Act is not the final word on reforming our electoral system. While it introduces necessary and much-needed regulation for the introduction of independent candidates into our government, the continuous commitment to reform is solidified in the appointment of the aforementioned panel. One anticipates that any challenges that independent candidates may have will be resolved through continuous review by the panel. The panel should urgently address the concerns raised earlier in the article, particularly the iniquitous proportional representation of seats both in the National Assembly and the provincial legislature in terms of section 31A of the Electoral Amendment Act. If these concerns are not addressed, unaffiliated independent candidates may struggle to gain the adequate support for their motions and may be overlooked by the participants in those bodies with greater representation and support within the space, thereby effectively rendering their participation in the National Assembly or provincial legislature moot.
One can only hope that these amendments will encourage citizens, who not only understand the issues on the ground but have lived through these difficulties and have found mechanisms to work around them in a sustainable and cost-effective manner, to work towards entering politics to enforce large-scale social change for the benefit of all South Africans.
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B Com LLB
B Soc Sc Hons (Psych) LLB
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