Proposed amendments to Electoral Bill no reform

Anton van Dalsen says these won't increase accountability and won't bridge distance between electorate and representatives

We won’t see any reform with proposed amendments to Electoral Bill

19 September 2022

Since 1994, South Africa's national elections have been based on the closed party-list proportional representation system. The details for the first two elections were specified in the interim and final Constitution, but since 1999, it has been possible to make changes to the system through legislation, provided that it results, in general, in proportional representation.

Since 1999, attempts have been made to advocate electoral change through the inclusion of constituency representatives, combined with several seats to be allocated to parties on a proportional basis, to ensure overall proportionality in the National Assembly. An electoral task team appointed by Cabinet in 2002, and a high-level panel chaired by former president Kgalema Motlanthe in 2017, both recommended such electoral change, with a focus on the importance of facilitating accessibility and responsiveness between voters and their representatives and promoting an environment with greater accountability to the electorate. However, government decided not to pursue these recommendations.

The current system, which provides for members of Parliament to be appointed via party lists, has led not only to an increasing distance between voters and the national legislature but has also increased the hazards of unlimited centralised control by party leaders, who are able to decide on the identities of their Parliamentary representatives. The recent South African experience with state capture further underlines the dangers of a remote or non-existing relationship between the electorate and members of Parliament.

In June 2020, the Constitutional Court directed Parliament to amend the Electoral Act to make provisions for independent candidates in the National Assembly. This has given Parliament the opportunity not only to cater for independent candidates but also to effect broader meaningful electoral reform.

This was clearly indicated in the June 2021 report of the Ministerial Advisory Committee ("MAC"), which the Minister of Home Affairs had appointed to advise him on the changes that were required in terms of the Constitutional Court judgment.

The majority of the MAC recommended that voters should have two votes: the first for an individual person to represent their constituency (constituting half of the National Assembly), and a second for the party that they wished to see in Parliament (accounting for the other half). This would encourage a much more direct personal connection to the national legislature (through voters having a representative of their own constituency in Parliament), while at the same time not infringing on the Constitution's requirement that Parliamentary representation has to be proportional, in general. The second vote would act to correct any proportional imbalance in Parliament if a party won too many (or too few) constituency seats, expressed as a proportion to their share of the second vote. This system is similar to that employed on local government level.

However, government decided to follow the recommendation of the minority of the MAC, which suggested including independent candidates within the existing electoral system, requiring as little change as possible, thus avoiding any members of Parliament elected on a constituency basis.

The current call for comments by the National Assembly's Portfolio Committee on Home Affairs on the latest amendments to the Electoral Amendment Bill, purely concerns putting the finishing touches to minimal changes for allowing independent candidates within the existing electoral system. No provision is made in the Bill for meaningful change. As a result, we are unfortunately confronted with the prospect of independent candidates being elected on a proportional basis in individual provinces, with no connection to voters on a local level, where independent candidates would typically resonate.

The marginal amendments to the electoral system, as proposed by the Electoral Amendment Bill, will not increase political accountability to the electorate and will not affect the steadily increasing distance between the electorate and their representatives in Parliament.

Anton van Dalsen is a legal counsellor with the Helen Suzman Foundation

A version of this brief first appeared on News24.