By Letlhogonolo Letshele
The Constitutional Court has given an order granting parliament a further extension to finalise its process to pass and adopt the Electoral Amendment Bill. This is the second extension after parliament missed its initial deadline of June 10, 2022, which was set back in June 2020 by the Constitutional Court.
Parliament was then given an extension until 10 December, 2022 to finalise the process, which it again missed. So, the Concourt has now given parliament until February 28, 2023. The Electoral Amendment Bill amends the electoral laws to include independent candidates to contest elections in the National Assembly and provincial legislatures. This follows the Concourt having declared the Electoral Act unconstitutional because it does not allow independent candidates to contest at provincial and national levels. Parliament was ordered to remedy the defect within 24 months. More than 30 months into the process of fixing the legislation, parliament is clearly running out of time to amend the Electoral Act and so will the Electoral Commission of South Africa (IEC), eventually, to implement the changes. While the IEC has said that the extension will not necessarily hamper its preparations for the 2024 national and provincial elections, any further delays will become a threat to the preparation work.
The IEC needs time to draw up an election timetable, develop new systems for the inclusion of independent candidates and conduct public and voter education on the new electoral system. This will disrupt the already constrained preparation process towards the elections and is likely to compromise the credibility of the elections.
There are still fundamental flaws in the Bill that, if adopted without being remedied, would likely not pass constitutional muster and risks legal action and therefore further delays. On the other hand, any major changes to the current Bill, which are still likely to be implemented because the Bill is flawed, might compromise the IEC’s planning process. There still needs to be remedying of the major flaws of the Bill to ensure that the 2024 national and provincial elections are credible. So, there are no easy solutions for the IEC.
Therefore, this means that the IEC’s preparation is solely based on the premise that there are no more major changes to the Bill leading up to its finalisation. It is also likely based on the assumption that major flaws are disregarded for the purpose of the Bill being finalised. This puts a risk to the integrity of the elections and easily puts the Concourt in a position where it must decide whether to suspend major changes to the Bill in order to allow the IEC enough time to prepare for the elections. This is dangerous and can plunge South Africa into a constitutional crisis.
The IEC initially advised that it would need at least 18 months for preparations on a finalised electoral system, which makes the deadline of the previous extension the ‘hardline’ in terms of careful planning for 2024. This is because the Bill has major implications on the planning process of the IEC, especially with regards to the development of new election results and seat allocation applications and a new candidate nomination system.
It also has implications on the configuration of the ballot paper; the proposed system will increase the number of ballots. Furthermore, the Bill will have implications on public and voter education because any new electoral system will require extensive public education.
So, any preparation happening post the deadline of the first extension will potentially jeopardise the integrity of the elections. Moreover, the IEC is facing budget cuts of almost R800 million (before taking inflation into account) over the next three years. The specific areas that will be impacted by the budget cuts include cancellation of the second weekend for voter registration for the 2024 national elections. Voter education and outreach will not be adequately funded, and staff expansion cannot happen. The implementation of the Electoral Amendment Act will also be compromised.
If anything, the delays to the finalisation of the Electoral Amendment Bill are extremely threatening, especially if there are any structural changes to the Bill leading up to its adoption. There are major implications for implementing the Bill for the IEC ahead of 2024, from changing systems to embarking on voter and public education. All of this is happening in the context of delays in the process which have hamstrung the planning process of the elections. Moreover, the IEC is experiencing budget cuts, which will impact the implementation of the Electoral Amendment Act and the ability of the IEC to fulfil its mandate.
The IEC must ensure that the elections are credible. The IEC is mandated by the Constitution to manage free and fair elections and to safeguard our democracy. Such delays will further undermine the IEC’s ability to carry out its mandate and is a threat to our democracy. The further delays are a long-term threat towards efforts to renew our electoral system and sustain our democracy.
*Letlhogonolo Letshele is the electoral systems researcher at My Vote Counts
** The views expressed do not necessarily reflect the views of or Independent Media.
