ConCourt presented with early challenge to Electoral Amendment Bill

The Constitutional Court on Friday extended the suspension of its own finding on the invalidity of the country’s Electoral Act to 31 January 2023 – and must now also deal with an application from the non-partisan New Nation Movement to allow a challenge to the proposed amendments, even before they are promulgated into law.

Time is however running out for the Independent Electoral Commission (IEC) to incorporate any further changes in its system and deliver a free and fair election in 2024, the court heard.

According to political commentator Professor Theo Venter from the School of Public Management and Policy at the University of Johannesburg, the envisaged amendments could change the balance of power in parliament by allowing the participation of candidates without political party affiliation.

This may water down the position of such parties.

“Everybody thinks if the ANC obtains 50% of the votes in 2024 they will be able to retain a majority, but this [the proposed amendments] could change everything,” says Venter.

The process to amend the act started in June 2020, when the New Nation Movement as the first applicant obtained an order from the Constitutional Court that the Electoral Act is unconstitutional and invalid insofar as it limits participation in provincial and national elections to candidates representing political parties.

Independent candidates and those representing interest groups are excluded and may only participate in municipal elections.

State given two years to comply

The court then suspended its order and gave parliament two years to amend the act to comply with the constitution.

When the deadline approached, it was clear that parliament would not meet the deadline and in April this year it approached the court for a further six-month extension.

Despite New Nation’s objection, the court gave parliament the benefit of the doubt and granted a further extension to 10 December 2022.

According to papers filed on December 2, a mere eight days before the new deadline – by National Assembly Speaker Nosiviwe Mapisa-Nqakula, National Council of Provinces (NCOP) chair Amos Masondo and Minister of Home Affairs Dr Aaron Motsoaledi – they fully expected to meet the deadline, complete with President Cyril Ramaphosa’s signature, even if he had concerns and first referred it back to parliament.

They were however sorely mistaken …

From their papers it seems Mapisa-Nqakula, Masondo and Motsoaledi expected the NCOP to merely rubber-stamp the Amendment Bill and ran out of time when the council instead reverted with a proposal for two further amendments.

These additional proposed amendments would require fresh public consultations, which would make them miss the deadline, the trio explained, asking for a further extension to 28 February.

New Nation responded by opposing the further extension and bringing a counter-application on Thursday (8 December) – two days before the deadline.

Details of the counter-application

In an affidavit supporting the application, New Nation Movement executive director Bulelani Mkhohliswa says the two new amendments proposed by the NCOP have nothing to do with the original order and should be dealt with in a separate process.

New Nation is however concerned that the amendments as proposed will not cure the unconstitutionality and they ask the court to declare that parliament has failed in its constitutional duty with regard to the original order and for permission to present arguments about the flaws in the proposed amendments within 15 days.

Alternatively, they ask the court for strict oversight by ordering Mapisa-Nqakula, Masondo and Motsoaledi to report back to court on the progress every two weeks.

Vulnerable moment

By Friday, however, other parties had not yet had time to respond to New Nation’s counter-application – and without any further extension, the suspension of the order of invalidity would have left the country without a valid Electoral Act the next day, to the extent that participation in provincial and national elections is limited.

That would have made it impossible to proceed with by-elections, except at municipal level, and would have put the 2024 general elections at risk – a real constitutional crisis.

The court therefore issued an order on Friday and extended the suspension until 31 January to give it time to deal with the application and counter-application before it.

The delay in finalising the amendments is the result of both laxness on the side of parliament and an unwillingness by the ANC to do something that will impact on its own position of power, says Venter.

IEC under pressure of time

The IEC told the court that to ensure a free and fair election in 2024, due to take place between 22 May and 14 August, it must get started with preparations.

Chief Electoral Officer Sy Mamabolo told the court the IEC is already starting on the basis of the proposed amendment bill in its current form, knowing it may change.

To accommodate the changes, the IEC must redesign its IT system to provide for, among other things, an additional ballot paper for the National Assembly and changes in the way seats are allocated both there and within provincial legislatures.

That requires changes to its systems for the nomination of candidates, the generation of ballot papers, and its results system.

It further needs to scrutinise a number of laws and regulations to ensure compliance with the amendment bill.

Parties will now exchange papers to further prepare the matter for consideration by the Constitutional Court.