Can independents run for national SA elections? ConCourt says yes

It seemed to have passed everyone by, but the Constitutional Court's June ruling on political party funding may have opened the door for independents to run for office in provincial and national elections.

On June 21, the Constitutional Court delivered a landmark ruling that affirmed the voter's right to be informed about who was funding political parties and independent ward candidates.

The court found that the Promotion of Access to Information Act (PAIA) was unconstitutional, and that it did not provide for the disclosure of information on private funding that a party or candidate received.

The judgment in the main dealt with issues brought by NGO MyVoteCounts on citizens' rights to be informed going into an election, so that a voter could make political choices.

However, in one paragraph of the judgment which dealt with citizens' 'right to vote', Chief Justice Mogoeng Mogoeng affirmed another fundamental right of the individual when it came to political choices, as outlined in Section 19 of the Constitution.

'Right open to be exercised whenever desired'

Citizens, Mogoeng wrote, have the right to vote in elections for any legislative body, participate in political party activities, but also crucially, "to stand for public office, and if elected, to hold office".

"Our Constitution does not itself limit the enjoyment of this right to local government elections," paragraph 29 of the unanimous judgment reads.

"The right to stand for public office is tied up to the right to 'vote in elections for any legislative body' that is constitutionally established.

"Meaning, every adult citizen may in terms of the Constitution stand as an independent candidate to be elected to municipalities, provincial legislatures or the National Assembly. 

"The enjoyment of this right is not and has not been proscribed by the Constitution. It is just not facilitated by legislation.

"But that does not mean that the right is not available to be enjoyed by whoever might have lost confidence in political parties. It does, in my view, remain open to be exercised whenever so desired, regardless of whatever logistical constraints might exist."

Constitution and Electoral Act

Paragraph 29 indicates that a mixed system could and should work for both provincial and national elections too, and citizens have a fundamental right to contest for a political seat on a national scale, if they so wished.

Currently, only local government elections operate within a mixed system, where independent candidates can run to represent wards in their respective local councils.

The barrier is that there currently is no legislation enabling such a move, nor an outline on which constituency an independent could represent, or how seats would be allocated in the National Assembly.

The Electoral Act also says citizens need to be a member of a political party to hold national or provincial office. As the Chief Justice pointed out however, the Constitution itself made no such demand.

Dr Michael Louis, a former MP and member of the Western Cape provincial legislature, has taken this battle to the highest courts in the land, to affirm the ability of independent candidates to run for office at a national level.

In his view, the Electoral Commission must propose to Parliament an amendment to the Electoral Act, as compelled by their duties and functions in Section 5 of the Electoral Commissioners Act.

'Generosity spirit, game changer'

Due to time constraints, mediation and dialogue by all stakeholders is the best way to solve the conundrum, he said.

"We run the risk of holding a general election next year that could be unconstitutional," Louis told News24 this week.

"We need political leaders to have a generosity spirit to welcome new leaders. They can't cling on to power.

"Our political system is dysfunctional and does not hold public representatives accountable to the people. People need to choose their own leaders of choice and not rely on political parties to choose on their behalf."

Louis requested direct access to the Constitutional Court in December last year.

However, the court decided that it would not be in the interests of justice to grant direct access to the court at that point.

On July 30, Louis approached the Western Cape High Court with an urgent application, asking the court to direct the Independent Electoral Commission (IEC) and key stakeholders in the government to hold a pre-mediation meeting on the matter.

That application too was dismissed as not urgent, but the case is still currently with High Court.

The MyVoteCounts ruling, passed after his initial applications to both courts, has now placed the issue firmly on the agenda, with less than 12 months to the general elections.

Speaking at a Foundation for Mediation and Justice and Peace event in Cape Town this month, Louis said mediation remained the preferred legal route, as a drawn-out legal battle was "in nobody's interest".

The matter itself however, was definitely "in the public's interest. It would be a game changer," he said.

69 constituencies 'best electoral model'?

His view is backed up by both the 2003 "Van Zyl Slabbert report" and Parliament's 2017 High Level Panel report, chaired by former president Kgalema Motlanthe.

The Van Zyl Slabbert report, commissioned by Cabinet in 2002, recommended that electoral reform was necessary to ensure 'multi-member constituencies'.

It proposed 69 multi-member constituencies in the country. Of the 400 members in the National Assembly, 300 would come from closed constituency lists.

The remaining 100 representatives could be allocated from closed national party lists "in order to restore overall proportionality".

Parliament's High Level Panel report, released 14 years later, supported the idea and said mixed representation was the best electoral model to ensure individual accountability.

"One of the major challenges with the current electoral system is the weakness of the PR (proportional representation) system in holding politicians to account to the electorate," the high-level panel report reads on page 525.

"Members of Parliament are appointed, not directly by voters, but rather by the party, based on candidate lists submitted to the electoral commission ahead of elections.

"This makes them beholden to the party and its leadership rather than voters and places party political and loyalties ahead of effectiveness and delivery."

Voter turnout 'would increase'

A mixed system would therefore bridge the gap, by ensuring that people directly elect the representative they want in a multi-member constituency system, it read.

Similarly, the majority view of the Van Zyl Slabbert report was that open lists would not only improve the accountability of individual candidates dramatically, but would substantially increase voter participation in the democratic process.

"Voter turnout would likely increase under a new system," Louis added.

Could these changes be enacted in our current political system ahead of the 2019 or 2024 general elections?

It would require:

  • an amendment to conflicting points in the Electoral Act,
  • enabling legislation governing how independent candidates run nationally, and
  • bringing all other relevant legislation in line with the Constitution.

Louis told News24 he would continue to appeal for a mediated session with the IEC and key parties in government, including the presidency and the Department of Home Affairs.

IEC not opposed, but 'simply no time'

The IEC acknowledged News24's request for comment this week.

It said it had to administer provincial and national elections within the realm of the Electoral Act, which currently envisages a proportional representation system contested by political parties who submit a list of candidates.

"Whilst the judgement is noted, the Electoral Act would need to be amended to make provision for an independent to contest the national and provincial legislation (sic)."

"The matter was before the Constitutional Court... where we did not oppose the matter in principal, but opposed it on the basis of urgency. The matter was dismissed on the basis of urgency.

"The matter is currently again before the High Court in Cape Town where we have held the same view. The time available does not allow for a change in the electoral system for the national and provincial elections since it is not a simple matter of allowing independents to stand as candidates."

As argued in the two courts, the suggestion is coupled with a change in the election system bringing in a constituency element.

It would take about 18 months for the Municipal Demarcation Board to finalise ward constituencies.

"There is simply not enough time for this to materialise within the Constitutional time frame to hold elections in 2019." 

Nonetheless, the IEC's response shows that it does not deny in principle the fundamental right of citizens to run as independents in a general election.

The legislative obligation therefore relies on lawmakers to bring the Electoral Act in line with the Constitution.

*UPDATE: The National Assembly will debate a COPE-sponsored motion on the matter in February, 2019.

The case currently before the Western Cape High Court will get a court date pending the outcome of Parliament's debate.

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