Since the Constitutional Court ordered Parliament in 2020 to amend the Electoral Act (73 of 1998), there has been a lack of urgency to implement the substantive change. 

This is according to Dr Sithembile Mbete, director of programmes of Futurelect, who was speaking at a recent webinar on “What you need to know about Electoral Reform”, hosted by the Organisation Undoing Tax Abuse (Outa).

South Africa does not have constitutionally binding legislation for the 2024 elections, said Mbete. Parliament is mandated to make electoral legislation, but “Parliament slept on the job”, she said.

The webinar unpacked a research report, compiled by Mbete for Outa, which focuses on how electoral reform has proceeded since 2020. It explains that the apex court had ordered the amendment to enable individual candidates to run for elected office without joining a political party. The closed-list proportional representation electoral system South Africa uses is “a product of the negotiated transition from apartheid to democracy”. 

Recent updates

The Parliamentary Portfolio Committee on Home Affairs met on 30 November and advised a possible extension of time for the amendment process to be completed due to “the material changes that have taken place”, said Rachel Fisher, parliamentary engagement and research manager at Outa. 

The Constitutional Court had granted an extension until 10 December for this process. The Electoral Amendment Bill was passed on 20 October 2022.

Past influencing the present

The current electoral system was agreed upon in 1994 because that ensured that voters vote for parties, and parties then decide who will represent them, said Mbete. “That would be the easiest electoral system because it’s easy to understand.”

However, the understanding was that there would be more thought given to what electoral system South Africa would use in the future, said Mbete. 

Dr Sithembile Mbete. (Photo: Gallo Images / Alet Pretorius)

In the final address of his presidency in 1999, Nelson Mandela, said “look at the work of the committee that has scrutinised legislation and improved it…. [but] we do need to ask where we need to re-examine our electoral system, to improve the nature of our relationship, as public representatives, with the voters”. 

Read in Daily Maverick: “Electoral reform arrested – with political kick for touch after 2024 polls”

New Nation Movement

The Constitutional Court declared the Electoral Act unconstitutional because it hindered individuals who wanted to run for national or provincial elections, Gregor Jaecke, the incoming resident representative at the Konrad Adenauer Foundation in South Africa, said during the webinar. 

That judgment followed an application by the New Nation Movement NPC, Chantal Dawn Revell, GRO and Indigenous First Nation Advocacy SA. 

According to Outa’s report on electoral reform, the New Nation Movement describes itself as a “non-partisan, all-inclusive People’s Movement” and they motivated that the electoral act was unconstitutional as it contradicted section 19(3) of the Constitution which stated that ”every adult citizen has the right…to stand for public office and, if elected, to hold office”.

They believe the Electoral Act hindered them from section 18 in the Constitution which deals with freedom of association, stated the report. 

“Debates dealing with electoral reform are always controversial and highly politically sensitive. The reason is clear: the topic is closely connected with the distribution of power and when it comes to power-sharing we find ourselves directly into political power games,” explained Jaecke.

The voice of civil society

“We must never forget that civil society is where the power lies,” said Dr Michael Louis, chairperson of the One South Africa Movement. 

The power lies with the public, he emphasised, adding that there is no trust between Parliament and civil society. 

People under the age of 35 need to be mobilised as these laws will affect them, said Mbete, while Letlhogonolo Letshele, electoral systems researcher at My Vote Counts, added: “We are the ones that need to serve ourselves.” 

The people have the power, Letshele concluded. “We are the government.” DM/MC