By Nkanyiso Simelane
South Africans increasingly desire to disassociate themselves from political parties. A corrupt political party culture with, for the most part, a lack of effective accountability, limits party member participation, frustrates the voting public and hinders citizen power.
Even though at the local election level independent political candidacy has always been an option, in reality independents have stood little chance of succeeding. Rather than vote for an independent, South Africans simply choose not to vote.
Growing voter apathy and a progressive drop in voter turnout since 1994 led to a long-standing debate on electoral reform. In 2020, this culminated in a ruling by the Constitutional Court that declared the electoral system unconstitutional for not allowing citizens to contest national and provincial elections without political party affiliation.
The court explained that the right to freedom of association contained in Section 18 of the Constitution includes the negative element of the right not to associate. Hence, the Electoral Act was inconsistent with this view by inadvertently compelling citizens to form political parties in order to contest general elections. Citizens should be afforded the choice not to associate with political parties when contesting an election and the electorate should not be confined to voting for political parties. Unfortunately, the Electoral Amendment Bill, signed into law on April 17, does not adequately fit the purpose intended by the court judgment.
There are various issues relating to the Bill that prevent an even playing field for independent candidates. The prospects for independent candidates to succeed against political party candidates remain slim and continue to obstruct the issue the court wished addressed.
Firstly, the newly legislated electoral system does not allow independent candidates to contest fairly and squarely at national and provincial levels. Following the ruling by the court, the Minister of Home Affairs, Dr Aaron Motsoaledi, appointed a Ministerial Advisory Committee. The committee submitted a report providing two options on how to make the necessary legislative changes – the minority and majority’s options. The minister opted to endorse the minority’s option.
This decision has been criticised for favouring political parties more than independents by civil society organisations and NGOs who have been advocating for a more constituency-based system. This system could level the playing field for prospective independents and offer more power to voters to elect parliamentarians directly. Further submissions of a similar kind were made to Parliament, but these stood little chance in a Parliament exclusively made up of political party representatives.
Secondly, the way that the bill is designed means that when an independent candidate receives votes above the quota, their remainder (extra) votes are wasted and effectively get transferred to larger political parties in the subsequent round of proportional representation (PR) seat allocation.
By way of illustration, if a candidate needs 2 000 votes to gain a seat, an individual independent candidate who receives 4 500 votes will end up with only one seat. Yet, if a political party obtains 4 500 votes, it gains two seats. In addition, the remaining 500 votes of the political party get combined with other remainder votes to be included in the national PR seat calculations and allocations. This cumulatively produces more seats for the political party concerned. The votes for independents are not treated at the same level: Independents do not land with the same opportunity of being able to accumulate extra votes and to obtain extra seats the way political parties do. Rather innocuously, the extra votes for independents are transferred to political parties during all subsequent PR seat allocation rounds.
Thirdly, independent candidates are required to obtain more than 12 000 signatures to stand for election, while political parties only need a thousand. This creates a very high barrier for independents to enter the electoral space at the national and provincial levels.
In essence, the practical implications of the bill would favour political parties and render contesting as an independent disadvantageous and therefore, unwise. One can argue that this has already deterred prospective independent candidates, such as Mmusi Maimane. Through the One South Africa Movement, he was originally advocating for independent candidacies. In the light of the new legislation, he has had to establish a political party/formation – Build One South Africa – to contest the 2024 elections. This highlights how the new legislation has undermined the idea and practice of putting forward independent candidates in the forthcoming 2024 general elections.
Despite the shortcomings of the new legislation, one should not throw the baby out with the bath water. The idea and purpose behind having independent candidates does increase the voter’s direct choice and power on who can represent the voter in Parliament. There is also provision to make further legislative changes.
The Bill provides for the establishment of an Electoral Reform Consultation Panel within four months after the commencement of the Electoral Amendment Act. Its functions are “to investigate, consult on, report on and make recommendations in respect of potential reforms of the electoral system for the election of the National Assembly and the election of the provincial legislatures, in respect of the elections to be held after the 2024 elections”. This suggests an appreciation of the issues inherent in the bill.
While there is a heightened prospect of litigation against the bill, which is necessary and welcomed, the Electoral Commission of South Africa (IEC) is already pressed on time to implement current amendments. Further amendments may negatively affect the integrity and quality of the 2024 elections. In looking towards the 2029 elections, preferably a longer-term approach of constructing a more rational and credible electoral system for independents is needed. This would need increased advocacy and sustained pressure on Parliament for further amendments, greater public participation and voter education on the issues surrounding the current bill.
The introduction of independent candidates still has great potential to provide the electorate with a more direct form of election that can minimise partisanship. Yet, this requires the necessary electoral system to satisfy the spirit of the court judgment and fulfil the heartfelt aspirations of many South Africans for tangible political alternatives.
* Simelane is a research intern at the African Centre for the Constructive Resolution of Disputes and a Master’s candidate at Wits University.
** Simelane writes in his personal capacity.
*** The views expressed are not necessarily the views of IOL or Independent Media.
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