Electoral Act ruling not the 'magic bullet'
Publish date: 22 June 2020
Issue Number: 878
Diary: IBA Legalbrief Africa
Category: South Africa
The Constitutional Court’ ruling declared aspects of the Electoral Act unconstitutional to the extent that it does not make provision for individual candidates to contest elections to national and provincial legislatures ‘is undoubtedly a landmark judgment with the potential to deepen democracy in SA, but such excitement and jubilation of what it would herald is somewhat exaggerated and premature, although it reflects the frustration with the ineffectiveness of Parliament and the control exerted by party bosses’. Lawson Naidoo, of the Council for the Advancement of the SA Constitution (Casac) – a friend of the court in the case – adds that the judgment is a step towards reform of the electoral system, ‘but not the magic bullet that some celebrate’. In his analysis on the City Press site, Naidoo points out that in its submission, Casac argued that Parliament was best placed to determine the most appropriate electoral system, as this was primarily a political rather than a legal decision. Justice Mbuyiseli Madlanga confirmed this, saying: ‘A lot was said about which electoral system is better, which system better affords the electorate accountability. That is territory this judgment will not venture into. The pros and cons of this or the other system are best left to Parliament.’ Naidoo says in developing a new electoral system, Parliament will be constrained by some existing constitutional provisions:
* The President is elected by members of the National Assembly.
* Any electoral system must ‘result, in general, in proportional representation’.
* The size of the National Assembly is limited to between 350 and 400 members.
Naidoo notes that any deviation from these prescripts will require constitutional amendments. He adds: ‘The judgment provides an opportunity to craft a new electoral dispensation but for now it raises many more questions than it answers. It is not a panacea for boosting accountability and ensuring clean governance.’ Naidoo believes the foundational constitutional value of responsiveness – nestled between accountability and openness – ‘has proved most elusive’.
