Electoral law: ANC opts for just a tweak

• Top court ordered changes by June 2022 • Party’s leadership decides against major reform

The ANC’s national executive committee (NEC) has decided against major electoral reform and in favour of minimal changes to the Electoral Act to allow independent candidates to stand for provincial and national elections.

The act was declared unconstitutional by the Constitutional Court in June last year because it did not give expression to the right of individual citizens to stand for election, as provided by the Bill of Rights, and catered only for political parties.

Parliament was given two years to rectify the defect.

The need to amend the act gave rise to a wider discussion about the efficacy of the electoral system and the extent to which, as a purely proportional representation system, it encouraged accountability of MPs to the electorate.

Home affairs minister Aaron Motsoaledi established a ministerial advisory committee, chaired by former constitutional negotiator and former cabinet minister Valli Moosa, which handed its report to him in June.

As the committee did not reach consensus it provided a majority report, which advocated for large-scale electoral reform, introducing both a proportional representation list and a constituency based system, from each of which 200 MPs would be elected. The minority report advocated minimal reform, proposing that the provinces in the present system be viewed as large constituencies in which either a party or an individual could stand for election.

The head of the ANC’s NEC subcommittee on legislature and governance, Phumulo Masualle, said in an interview on Tuesday that after several workshops and discussions, the committee had taken the matter to the ANC NEC, which had opted for the second option, which did not require large-scale change.

“The injunction of the constitution must be observed by all accounts and there must be provision to accommodate independent candidates in both provincial and national elections. That has been decided. This requires agreement of the nature of the constituencies to

which individuals will make themselves available.

“In some form, the provinces are regional constituencies. A province can become a constituency for the purposes of the provincial legislatures and the provincial and national elections,” said Masualle.

Under the present system, the proportional representation list for the National Assembly is compiled from “national to national” candidates and “province to national” candidates for each province. Independent candidates who are affiliated to a political party would make themselves available on the “province to national” lists and on provincial lists for the provincial legislatures.

While the view of the majority in the ministerial advisory report was considered by the ANC, Masualle said, it was not the favoured option. “That would involve a demarcation process and the time that would have required was not possible for the 2024 national elections. In the long run, we said that a review of the electoral system should be done in an ongoing way.”

With the ANC having made its preferences clear, the next step will be the introduction of an amendment to the act to parliament by Motsoaledi or the portfolio committee on home affairs. Parliament has until June 2022 to process the bill.

Moosa backed the majority view on the eight-member committee, arguing the direct election of MPs by constituencies engendered accountability to voters, who could refuse to vote for them again. Former Electoral Commission of SA chair Pansy Tlakula, who also served on the committee, backed the minority view.

Should the ANC’s preference for minimal reform be proposed and adopted by parliament, this will be the second time that the ANC has considered electoral reform and rejected it.

The design of the electoral system at the time of the 1994 election was assumed to be temporary and was not intended to regulate elections beyond 1999. In 2003 an electoral task team, headed by former PFP leader Frederik van Zyl Slabbert, was appointed to look into the next phase of electoral politics.

That committee was also divided, with its majority report recommending a hybrid list and multiconstituency system. Its findings were never adopted by the government.

In November 2017 the highlevel panel to assess the extent to which legislation has achieved the vision set out in the constitution, chaired by former president Kgalema Motlanthe, identified the party list system as detrimental to accountability. It recommended that parliament amend the act “to provide for an electoral system that makes MPs accountable to defined constituencies on a proportional representation and constituency system for national elections”.