Residents of Siqalo informal settlement queue to vote on 1 November 2021 in Cape Town. Photo by Jaco Marais/Gallo Images / Die Burger

President Cyril Ramaphosa has exactly two months before he signs into law a bill that will, for the first time in the history of South Africa, allow independent candidates to contest elections.
But the proposed law is already facing threats of legal action from civil society organisations.

By Nonkululeko Njilo

The 2024 general elections are under threat of not being credible and fair, says Defend Our Democracy.
It says the threat can only be halted by President Cyril Ramaphosa, who could refuse to sign into law the Electoral Amendment Bill and refer it back to Parliament for further input, or to the Constitutional Court for a confirmation order of the constitutionality of the legislation.
If the bill is challenged in court on the basis of fairness, elections could be delayed as the Electoral Commission of SA (IEC) has indicated that it would require about 18 months to prepare for the elections.
According to Defend Our Democracy, the bill is profoundly flawed and a “sham”. The civil society organisation advanced this view on Monday as it made an impassioned plea to Members of Parliament and Ramaphosa to reject the bill.
Parliament has been racing to finalise the details for the new electoral dispensation following a landmark Constitutional Court ruling two years ago that independent candidates could participate in provincial and national elections. The court gave Parliament two years to effect the necessary changes.
“Now, with months before the Constitutional Court deadline to finalise the bill, we believe that Parliament is putting at risk the 2024 elections. The 2024 elections must accommodate independent candidates and the IEC has to have time to prepare for it. But instead of considering an option that is viable for the country, Parliament has instead gone for a flawed model which can be legally challenged.
“We therefore reiterate our call to MPs to vote no. We call on President Cyril Ramaphosa to not sign off this sham of a bill,” Defend Our Democracy said in a statement.
The Constitutional Court has given Parliament until the start of December to finalise the bill and Ramaphosa until 10 December to sign it off.
If the bill is passed, prospective candidates will be subject to stringent guidelines, including that candidates will have to garner just over 8,000 voter signatures to be eligible. Political parties currently require 1,000 signatures to register with the IEC.
Experts and civil society organisations have taken issue with this, slamming it as an unfair practice. However, Home Affairs Minister Aaron Motsoaledi has repeatedly told Parliament that guidelines need to be tough to establish which candidates are serious and have a solid support base.
Defend Our Democracy would not say whether it would approach the courts should MPs and Ramaphosa forge ahead with the bill. Neeshan Balton from the Ahmed Kathrada Foundation, however, confirmed that: “Work has already started around it; when the time is right, I think we will come up with those details.”

Defend Our Democracy has accused Parliament of rushing to pass the bill even though it is unfair. It is calling for changes to the voting system that will benefit voters and allow the public to hold MPs accountable, but insists that it does not want to see the elections postponed.
“If they pass this bill, and it is then challenged in court because it is unfair, this will delay the IEC further in preparing for the 2024 elections. We don’t want the 2024 elections to be delayed, so Parliament needs to listen to us now about making fair and credible changes to the electoral system.”
However, advocate Mojanku Gumbi from Defend Our Democracy, indicated she was confident Ramaphosa would make a sound decision. “I know the President will apply his mind independently because this is a fundamental constitutional issue even if his party has decided otherwise.”
Former Gauteng premier Mbhazima Shilowa said: “The irony is that the President is supposed to sign this bill on the 10th of December, which is international Human Rights Day, and it would be a tragedy if he were to sign a bill that takes [away] our rights on international Human Rights Day.”

Why is the bill unfair?
Defend Our Democracy says the bill is unfair because:
At national level, independent candidates are required to get double the number of votes for a seat in Parliament that a political party requires.
If an independent candidate were to vacate their position once elected, the bill does not allow for that vacancy to be filled through a by-election. It allows for a recalculation that could result in a position being filled by a political party.
Parliament did not sufficiently consult with the public about the bill, nor has it taken into account very reasonable arguments put forward by civil society about why the bill is unfair.
The point of changing a voting system is so that voters can know who they elect to Parliament and then hold their MPs accountable. In local government elections, candidates are known by voters in the wards where they stand. With this bill, the whole country is considered one ward at a national level and a province is considered a ward at a provincial level.
“Ultimately, this bill would mean that political party representatives in Parliament and provincial legislatures won’t be compelled to come to you in the next five years to explain why Parliament may not have held ministers accountable. Is this the kind of public representative that our country needs?” asked Defend Our Democracy.
The group has vowed to embark on a mass education campaign to familiarise ordinary members of society with the implications of the bill. It has also called on the public to engage with their local constituency offices and ask MPs to, “explain why they will be voting for or against the bill that benefits them more than it benefits us all”.

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