Electoral Reform: Understanding the New Nation Movement case

Introduction

The Constitutional Court delivered its judgment in the landmark decision of New Nation Movement NPC and Others v President of the Republic of South Africa[1] on 11 June 2020. The case concerned the right of independent candidates to contest national and provincial elections. The Order of the Constitutional Court was to deem the Electoral Act unconstitutional to the extent that it requires adult citizens to be elected to the National Assembly and Provincial Legislatures only through membership of political parties. In its majority judgment, the Court reasoned that the defect had the effect of unjustifiably infringing on certain rights. The Court gave Parliament twenty-four months from the date of the Order to remedy this defect in the Electoral Act. This means that an amendment to the Electoral Act needs to be effected by 22 June 2022.

Understanding political rights and choices

The section in question is S19(3)(b) of the Constitution which provides that “every adult citizen has the right— . . . (b) to stand for public office and, if elected, to hold office.” In the High Court, it was held that since the section does not include an express reference to independent candidates, such a reference cannot be read in. Moreover, other constitutional provisions appear to entrench the party political system, with parliamentary discretion to prescribe an electoral system. The High Court reasoned that in the best-case scenario, while there may be no prohibition against independent candidates contesting elections, there was also no constitutional requirement that they be expressly allowed to do so.

The Constitutional Court’s interrogation occurred at two primary levels: a rights-based analysis of freedom of association (S18 of the Constitution) and an interpretative exercise of the proper meaning of S19(3)(b) of the Constitution. The majority decision is careful not to provide a value judgment on which electoral system is the greater guarantor of accountability. It instead frames its concern as requiring the system chosen by Parliament – whatever system that may be – to be constitutionally compliant. The political rights enshrined in Section 19 of the Constitution are given effect by political choices. That the language of the S19(1) expressly states “include” and not “are”, affirm that what is envisaged by the section, and by implication the political choices afforded to a citizen, go beyond the itemised rights.

Having determined that the political rights of S19 must be interpreted through the lens of S18, the majority reasons that exercising one’s political choice only through a political party is a limitation that in effect “forces” one to truncate or diminish the right to freedom of association found in S18. Such a reading cannot be endorsed in the majority’s view as it creates constitutional disharmony. This is the crux of the majority’s jurisprudence on the question: the High Court accepted that a reading of S19(3)(b) does not necessarily restrict political participation in elections to political parties, however it also does not require provision for independent candidates. The Constitutional Court’s interpretation of S18 therefore becomes the gateway through which we move beyond the apparent “neutrality” of S19(3)(b).

What does the right to freedom of association mean?

The majority view this negation of the right to freedom of association as also infringing on one’s right to dignity. It is this marriage between the rights to association, conscience and dignity which are pitted against a negative reading of S19(3)(b) – a reconciliation requires an exercise in constitutional harmonisation. This harmony, the majority finds, manifests when S19(3)(b) is read to allow for independent candidates to contest elections.

There is an inextricable relationship between choices, rights, and freedom and the majority traverse this terrain through an interesting conceptual understanding of coercion. It asks whether reading S19(3)(b) to limit participation in election through membership of political parties constitutes a restriction on individual freedom. It finds that it does.

The effect of this is to bring into view S15(1) of the Constitution which provides for the right to freedom of conscience. A negative reading of S19(3)(b), in the majority’s opinion, pits party politics against constituency interests in a curious manner – suggesting the effect of this is to deny the representative the opportunity to exercise free will. Invoking the “secret ballot[2]” case, the majority relies on an assumption that when an independent candidate is not beholden to party interests, that candidate will instead be free to follow the dictates of one’s own conscience. In a later brief we will closely examine the idea of representation.

Constitutional inconsistencies

The ancillary questions before the Court, namely whether there are other logistical or interpretative impediments to this positive reading of S19(3)(b) are summarily dispensed with. That Schedule 6 of the Constitution expressly provides for a party list system is a mere transitional arrangement time-bound to the first national election. That the Electoral Act then imports this reading does not save it – the Court’s majority reason that it is necessary to question whether this importation is constitutionally compliant beyond the specified time period.

Moreover, the majority found that explicit references in the Constitution to a “multi-party” system cannot be read as restricting independent candidates - instead, such references are intended to ensure that South Africa could never be subject to a one-party system of government. Local government provisions found in S157(2)(a) stands in contract with S19(3)(b). The contradiction, as argued by the Independent Electoral Commission (IEC), is expressly one which “provides for the election of members from lists of party candidates drawn up in a party’s order of preference”, whereas both S18 and S19 are silent on the political participation of independent candidates. Striving for a harmonious reading between these contradictory section, the majority reasoned that their construction is justified by historical context: effective democratic transition required taking into cognisance the unique political consequences facing municipalities resulting in a separate process for local government negotiations. In the majority’s view, S157(2)(a) is thus a bespoke provision and this contradiction sanctioned given historical realities of spatial apartheid[3].

The majority judgment, in essence, takes the view that our political history, exclusionary and restrictive in nature, creates the imperative to interpret constitutional provisions progressively and generously. It does not, itself, engage in a limitations analysis[4] of the negative reading of S19(3)(b), instead charging that this onus or burden of proof to justify the limitation fell to the opposing parties who failed to do so. The lone dissenting judgment, penned by now retired Justice Froneman, recognises that in order to arrive at its outcome, the majority engaged with prima facie readings, implicit meanings and allusions in order to arrive at its preferred interpretation. Froneman’s dissenting inquiry is to examine the ways in which we pursue democracy, and how the Constitution facilitates this pursuit. The dissenting judgment finds that whether it be representative, participatory or direct democracy, the Constitution makes adequate provision for both the individual and the political party to participate democratically. As such, a “positive” reading of S19(3)(b) to allow for the participation of independent candidates in elections is not required, and a “negative” reading is not fatal to the right to freedom of association.

Legislative timelines and interventions

On 18 August 2020, at a joint virtual sitting of the Portfolio Committee on Home Affairs and the Select Committee on Security and Justice, MPs were briefed on an “integrated roadmap” which sets out possible timelines for the amendment process of the Electoral Act. The roadmap presents four scenarios, which are dependent on the legislative route pursued by Parliament.

Bills are tagged according to whether or not they affect the provinces, if they are money Bills, or a Bill which proposes a constitutional amendment. Depending on the nature of the Bill, it will be tagged according to the constitutional procedure it invokes. Section 75 Bills are Bills that do not affect the provinces, while Section 76 Bills do, the force of the distinction being whether or not the votes of the National Council of Provinces can affect the passing of a Bill by the National Assembly. The roadmap proposes both options – a S75 and S76 Bill process. The routes are there again split into constituency and non-constituency system Bills. Constituency system Bills would necessarily require a demarcation process to determine constituency boundaries, thus being subject to a lengthier legislative process.

None of the scenarios proffered by the roadmap envisage a constitutional amendment. This assumption is significant. Should parliament decide on a constitutional amendment, the timelines proposed by the roadmap can no longer apply, as the process will outrun the Constitutional Court’s deadline. During the joint virtual sitting, the Minister of Home Affairs, Aaron Motsoaledi, in response to the roadmap, advised that certain cabinet processes could be dispensed with if Presidential permission is given. The Minister revealed already having written to the President to point out the urgency of electoral reform. However, the cabinet timeline is not clear. Moreover, the view of the Minister is that it would be “impossible” to continue with this legislative process without a constitutional amendment. The Minister’s dissenting position is revealing – before any legislative route is embarked upon, both the Executive and parliament must align their positions.

While we can take some heart that parliament, the IEC, and the Department of Home Affairs have begun to seriously think through the legislative road ahead at least terms of timelines, the simple truth is that which route is chosen will be based on a series of fixed and inflexible circumstances Should consultation periods, recesses, executive processes, stakeholder workshopping, socio-economic impact assessment, the date of elections, or political manoeuvrings misalign with these assumptions, the time periods all shift and so too do the proposed “start and end dates”. With all these unknowns, the roadmap remains nothing more than a preliminary proposal.

The Portfolio Committee on Justice and Security gazetted a call for comment on 28 August 2020 on a notice of intention to introduce the Electoral Laws Amendment Bill, 2020. The Bill is a Private Member’s Bill introduced by MP Mosiuoa Lekota of opposition party, The Congress of the People (COPE). The notice informs us that the Bill will emerge in the fourth quarter of 2020. Echoing the Court’s majority sentiments, the notice laments the lack of a direct relationship between the electorate and public representatives, and the consequential negative impact on accountability, a relationship made worse by the party list system. The proposed Bill will seek to introduce amendments to the Electoral Act to provide for the registration of independent candidates, to give effect to the constitutional interpretation of S19(3)(b), the creation of constituencies along current district boundary lines and the replacement of the “closed list” proportional representation system with the “open list” proportional representation system, and will also consider the legislative effect on concurrent legislation also needing to be amended. The public are currently invited to comment on this proposed Bill by 30 September 2020.

Conclusion

As we move closer towards the Constitutional Court’s deadline, the sheer magnitude of the task ahead for the executive, the legislature and the IEC become clearer. The necessary thinking, planning, and implementation that will needed to implement electoral reform - whether it be demarcation, delimitation, the creation of an independent demarcation entity, the amendment of concurrent legislation, or the pursuit of constitutional amendments, strongly suggest that Parliament will simply find itself running out of time. It could, of course, seek condonation and extension of time from the Constitutional Court, but this again raises the question of what that would mean for the next election.

In later briefs in this series we will explore these questions in detail and make certain policy and legislative recommendations. While we, the public and civil society, can appreciate the urgency surrounding these imperatives, we must also remain vigilant that public consultation, engagement, and participation do not become casualties of roughshod processes.

Kimera Chetty
Legal Researcher
kimera@hsf.org.za