Electoral Amendment Bill: Parliament in urgent ConCourt bid to extend deadline

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Alet Pretorius
  • Parliament lodged an urgent application to the Constitutional Court to extend the deadline for enacting the Electoral Amendment Bill.
  • This was necessitated by the NCOP's changes to the bill, which requires another round of public participation.
  • If granted, this will be the second postponement of the deadline.

Four days before a deadline set by the Constitutional Court expires, Parliament lodged an urgent application to the apex court to extend the date when the Electoral Amendment Bill must be enacted.

Parliament announced in a statement on Tuesday that it will ask the Constitutional Court to again extend the deadline - this time to 28 February 2023.

This was necessitated because the National Council of Provinces (NCOP) made changes to the bill that was passed by the National Assembly in October.

The NCOP made two major changes, proposed by Home Affairs Minister Aaron Motsoaledi.  

Chief among the NCOP's changes is a clause providing for the establishment of a panel of experts to consider more expansive electoral reform than what the current bill provides for.

This came on the back of widespread criticism of the bill from civil society, with a hybrid proportional/constituency system the preference of many.

It is not plausible to implement such a system in time for the 2024 election, and it is also not supported by the governing ANC.

The other change involves changing the threshold for supporter signatures, bringing what is needed by a party to register in line with what an independent candidate needs to compete in an election.

After the NCOP adopted the bill, it was referred back to National Assembly's Portfolio Committee on Home Affairs.

The committee received a legal opinion that the changes would require a further round of public participation.

READ | Another speed bump for Electoral Amendment Bill in long journey from ConCourt order to law

This would require time, and with the deadline looming, the committee unanimously agreed that Parliament should again approach the Constitutional Court for an extension.

"The practical consequence of these important amendments proposed is that the bill has had to be referred back to the National Assembly for consideration. As a consequence, it will not be possible to pass the bill by 10 December 2022 and it is, therefore, necessary to seek a further extension of the suspension period to 28 February 2023," reads a statement from Parliament's spokesperson, Moloto Mothapo.

"This short extension is designed to permit adequate public participation in respect of the proposed amendments while ensuring that the Electoral Commission has sufficient time to prepare for the 2024 elections.

"There is no prejudice to any party should this further extension be granted."

The bill is the consequence of an 11 June 2020 Constitutional Court ruling that declared the Electoral Act unconstitutional "to the extent that it requires that adult citizens may be elected to the National Assembly and provincial legislatures only through their membership of political parties".

The Constitutional Court suspended the declaration of unconstitutionality for "24 months to afford Parliament an opportunity to remedy the defect giving rise to the unconstitutionality".

READ | Why Parliament missed ConCourt's initial deadline on Electoral Amendment Bill

Parliament initially deferred working on the amendment to the Department of Home Affairs, and the bill was only introduced to Parliament on 10 January, leaving the legislature the impossible task of passing the bill within six months.

The Constitutional Court was approached for an extension of the 10 June deadline in April, and was granted a six-month extension on the day the deadline expired.

The court found that it was in the interests of justice to extend Parliament's deadline to pass the Electoral Amendment Act by six months, but took a dim view of both Motsoaledi and Parliament in its ruling that granted the extension.

The court found: "Naturally, it follows that it was also incumbent on Parliament to file an extension application in a timeous fashion."

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