CHAPTER 1: THE CONSTITUTIONAL COURT JUDGEMENT 1.1
Unpacking the Constitutional Court judgement declaring the Electoral Act unconstitutional
On 11 June 2020, the Constitutional Court declared the following: “4. It is declared that the Electoral Act 73 of 1998 is 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. 5. The declaration of unconstitutionality referred to in paragraph 4 is prospective with effect from the date of this order, but its operation is suspended for 24 months to afford Parliament an opportunity to remedy the defect giving rise to the unconstitutionality.” Upon assessment, the judgement does not provide extensive guidance but is focused on the shortcomings or deficiency of the Electoral Act with regards to independent candidates. Moreover, the judgement also does not provide guidance as to how the act should or can be amended. The Electoral Act is subject to the Constitution, and therefore the task of the panel must be accomplished without breaching the constitutional boundaries relating to electoral systems. The following provisions in the Constitution can be considered boundary posts regarding the amendments that can be made to the Electoral Act: Section 1(d): Multi-Party democracy Section 1 in the Consitution is the value clause that speaks of multi-party democracy. The Constitutional Court was requested to consider this clause in respect of independent candidacy in elections. Its view on the matter, however, is that independent candidates do not stand in the way of or impede on the functioning of multi-party democracies. This is considered a boundary post, as the amendments that give effect to the judgement may not undermine this value clause. It is also of importance since this value clause is in the Constitution to safeguard South Africa from becoming a one-party state. Section 19(3)(a): Right to vote This section is normally seen as comprising four aspects: •
General - For all who qualify according to the basic requirements to vote.
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Equal - To ensure that some votes do not weigh more or less than others, which has an implication for the type of electoral system that is established and how, in this case, independent candidates can be accommodated.
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Direct - Every vote has a direct influence on the outcome.
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Secret - Every voter votes voluntarily, without coercion, intimidation or duress and in secret.
Therefore, equality of the votes forms another boundary post that affects the amendment. An electoral system cannot be established where some votes outweigh others. Independent candidates cannot be accommodated in such a way that the votes brought out for them weigh more or less than for others. Section 19(2): Right to Free, Fair and Regular Elections is of importance as it is the basic political right contained in the Bill of Rights. Three aspects are contained in this section: •
Regular elections - Legislature has a fixed term, enforcing that there will be elections at regular intervals.
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Free - To participate without interference or coercion and to ensure that candidates and political parties must be able to participate.
PROPOSED ELECTORAL MODEL FOR SOUTH AFRICA
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