Challenge to electoral bill is on the cards

• Lobby group gets set for Constitutional Court challenge

Having done its utmost to lobby for changes to the Electoral Amendment Bill, the Independent Candidates Association plans to challenge it in the Constitutional Court. Association founder Michael Louis says the bill as finalised by the National Council of Provinces is unconstitutional for reasons including that it violates the principle of general proportionality and it creates a barrier to entry for independent candidates.

Having done its utmost to lobby for changes to the Electoral Amendment Bill, the Independent Candidates Association SA (ICA) plans to challenge its constitutionality in the Constitutional Court.

The bill is intended to allow independent candidates to contest national and provincial elections in line with a Constitutional Court judgment that the Electoral Act is unconstitutional because it does not provide for this.

ICA founder Michael Louis says that the bill as finalised by the National Council of Provinces (NCOP) remains unconstitutional because it violates the constitutional principle of general proportionality; because of the method of recalculating the seats in the case of a vacancy left by an independent candidate in the National Assembly or the provincial legislature; that it creates a barrier to entry for independent candidates by requiring them to obtain between 14,000 and 19,000 signatures to support their registration as candidates; and makes no provision for the aggregation of the votes of independent candidates who stand in more than one region.

“According to civil society, this bill is flawed,” said Louis.

“We are preparing papers to take the matter to the Constitutional Court once the bill is signed by the president,” Louis said in an interview on Friday. He said this was always seen as a last-resort measure, but none of civil society’s submissions during the parliamentary process was accepted.

Now that parliament has decided to apply to the Constitutional Court for an extension — possibly to the end of February — of the December 10 deadline which the court determined as the date by which the amended Electoral Act should have been on the statute books, Louis is of the view that the association’s court challenge is likely to take place only in March or April and be concluded in about September. This could place in jeopardy the 2024 general election as the Electoral Commission of SA (IEC) has said it needs 18 months to prepare an election. However, Louis said that because of the time constraints, the court would be asked for a writing-in clause to remedy the unconstitutional clauses rather than to send it back to parliament. There was also the possibility of elections being postponed for six months with the permission of the Constitutional Court.

Parliament’s home affairs committee decided on Friday that parliament would urgently ask the Constitutional Court for an extension of the December 10 deadline so that there can be further public consultation on the substantial amendments made by the NCOP’s select committee on security and justice.

The application to the Constitutional Court for an extension which was recommended by the home affairs department’s senior counsel, Steven Budlender, and parliament’s senior legal adviser, Siviwe Njikela, was likely to be made as early as Monday.

Budlender told the committee that he and advocate Mitchel de Beer believed it would be prudent to engage in some form of public consultation and if this and the signature of the bill into law by president Cyril Ramaphosa could not take place before December 10, then an urgent application for an extension should be made to the Constitutional Court.

Njikela did not believe the Constitutional Court, which has in the past emphasised the importance of public participation, would decline the application for extension, but if it did, it would probably give parliament directions on how to deal with the legislation.

“I can’t foresee a situation where it will simply refuse without providing some direction as to how parliament and the IEC should deal with the matter going forward,” Njikela said.

“That is the worst-case scenario.”

The delay in the promulgation of the bill will affect the IEC’s preparations for the 2024 elections and warned against a lengthy extension.

The period of public participation through written submissions will depend on the length of time for the extension granted by the Constitutional Court, but assuming that the end-February deadline is agreed on, the public will be given two weeks until end-January to make submissions so that the home affairs committee can consider the NCOP amendments in February.

This would be the second application for an extension. The Constitutional Court granted a six-month extension in June.