IEC presents a complex solution to deal with independent candidates in provincial and national elections

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The Constitutional Court ruled in their favour and ordered Parliament to amend the electoral bill. Photo: Sharon Seretlo/Gallo Images
The Constitutional Court ruled in their favour and ordered Parliament to amend the electoral bill. Photo: Sharon Seretlo/Gallo Images

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After being granted a deadline extension to implement the Constitutional Court’s decision to amend Electoral Act 73 of 1998 in June, Parliament is racing against time to tick all the boxes to allow the Independent Electoral Commission of SA (IEC) enough time to prepare for the 2024 general elections.

As part of the process to meet the new deadline of December, the electoral commission appeared before the portfolio committee on home affairs on Wednesday with the proposed electoral amendment bill, which guarantees that independent candidates will not lose their seats in the middle of the term.

Parliament was ordered to implement the Constitutional Court’s decision to amend the electoral act in 24 months since June 2020, but it missed the deadline of June 2022.

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Realising that it was about to miss the deadline with more work still not done, Parliament approached the apex court to be granted a deadline extension of six months till December, which was granted.

The order was made after several non-governmental organisations had challenged the electoral bill, arguing that it was not constitutional because it did not allow independent candidates to contest in the national and provincial elections if they were not a member of a political party.

The Constitutional Court ruled in their favour and ordered Parliament to amend the electoral bill.

The delay by Parliament to implement the order left the IEC in a predicament, which might force it to postpone the 2024 general elections.

After the electoral commission’s presentation, the portfolio committee raised serious concerns with respect to the calculations for seats recommended by the electoral commission.

But, the commission assured the committee that should the proposal be accepted, it would ensure that no political party or independent candidate will lose a seat mid-term only because a recalculation is necessary to fill a vacancy.

The commission argued that the proposed amendment was akin to reverse forfeiture, which was already applied in municipal elections.

READ: Five outstanding technical amendments on the Electoral Act Bill

According to the commission’s presentation, should the scenario present that a party having received a seat during the elections stand to lose it during the recalculation to fill a vacancy, it was suggested that item 34 of Schedule 1A be updated to provide that.

“Should any party or independent candidate stand to lose a seat during the recalculation contemplated in item 34, the party or independent will retain the seat, the votes cast for that party or independent candidate and the seat held by that party or independent will be removed from the equation and a forfeiture recalculation will be performed,” argued the commission.

The committee was concerned that the proposed calculations may lead to parties and independent candidates losing seats previously allocated to them during the elections.

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But the commission argued that the scenario is mathematically possible in the compensatory calculation of the National Assembly, but has never occurred in any of the national and provincial elections.

Questions were also raised as to whether independent candidates may contest both the National Assembly and provincial legislature, as the current draft permitted an independent candidate to contest both elections on the condition that they may only occupy a single seat.

The committee agreed that independent candidates were entitled to appoint and be represented by agents at voting and counting stations. It said:

The commission reiterates its submission that the bill only states the principle and does not stipulate the number of agents that a party and independent candidate are entitled to.

“The details including numbers and principles underpinning observation are left to be included in the regulations,” said the commission in the presentation.


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