Is the Electoral Act No 78 of 1998 Unconstitutional?

What do you do if you want to exercise your democratic right to vote, but don’t like any of the political options on offer? Many people say the solution to this dilemma is obvious – if you don’t like the options, don’t vote! One of the main problems I have with this “solution” is that an ever-growing number of people not voting undermines the very foundations of our democracy.  

Larger numbers of people not voting is also a clarion call for politicians to use more populist tactics in their attempts to attract disaffected voters. Instead of approaching society’s problems with visionary plans and coherent manifestos, party leaders are making more outrageously undeliverable promises. Some are also irresponsibly resorting to the “Big Man” politics of personality. Neither approach has any chance of solving our huge poverty and unemployment challenges but, hey, it will probably buy the political elite another five years of the high-life.

My dilemma, in a nutshell, is that I am committed to voting. I believe that it is not only a right, but a privilege and a responsibility that we must all diligently exercise. But, as hard as I try, I cannot identify with the ethos or ideology of any of the political parties pandering for our 2019 votes. If you are unfamiliar with the word, a pander is a pimp, or someone who exploits the weaknesses of others.  Based on past and present performance the word sums up South African politicians perfectly. An MP, after all, is really nothing more than a pimp for their party, exploiting the weaknesses and desires of others to attract votes.

I have long expounded a belief that the South African electoral system is legislatively defective, and my current dilemma serves to entrench that belief. I am not qualified to offer a considered legal opinion – I hope others will take this up from a legal perspective – but, logically, some provisions in the Electoral Act No. 73 of 1998 do appear to conflict with, or at the very least circumvent the Constitution. For example:

Chapter 2 of the Constitution: Bill of Rights

Section 16: Freedom of Expression – (1) Everyone has the right to freedom of expression

Section 18: Freedom of Association – Everyone has the right to freedom of association

Section 19: Political Rights – Every adult citizen has the right-

(3) (b) to stand for public office and, if elected, to hold office.

Chapter 3 of the Electoral Act: Proclamation of and Preparation for Elections

Part 3:   Requirements for parties to contest election

26. A party may contest an election only if that party:

  (a) is a registered party; and

  (b) has submitted a list of candidates in terms of section 27

In National and Provincial elections, my Constitutional right to stand for public office and, if elected, to hold office is therefore severely compromised by the requirement to be on a political party list. Forcing me to be on a party list channels my right to freedom of association to a registered political party which will undoubtedly require me to toe the party line, thereby also limiting my right to freedom of expression.

Chapter 3 of the Constitution: Co-operative Governance is also reasonably clear about political rights.

Sections 47 (1), 106 (1), and 158 (1) relating respectively to National, Provincial, and Municipal spheres of government all state – Every citizen who is qualified to vote is eligible to be a member of the National Assembly/National Council of Provinces/Municipal Council.  Only in the case of municipalities is there any mention in the Electoral Act of “Candidates”, in National and Provincial it only refers to “Party Lists”. It is therefore only in Municipal elections that I, and my fellow constituents can exercise, as independent candidates, freedom of association and freedom of expression, free of interference from political parties and their leadership.

Sections 46 (1)(d), 105 (1)(d), and 157 (3) relating respectively to National, Provincial and Municipal spheres of government also assert that the electoral system used must result, in general, in proportional representation. Note, it says IN GENERAL, and not EXCLUSIVELY proportional representation.

Through the Electoral Act, politicians have hijacked the Constitutional rights of citizens by entrenching political party exclusivity into National and Provincial elections. Constituency accountability has been sacrificed in favour of entrenching the power of party leadership, which has clearly proved itself to be extremely detrimental to our democracy, and counterproductive to the wellbeing of the people of South Africa.

I sincerely believe it is essential that the Electoral Act be urgently amended to include, at a minimum, a more constitutionally aligned and mixed constituency/proportional representation system for National and and Provincial elections. The amended system must also include the facility for qualifying citizens to register as Independent Candidates. We need more choices than just the best of a bad bunch, and more accountability from directly elected candidates.

In addition, bearing in mind some of the current speculation that the ANC might just be using Cyril Ramaphosa to win the 2019 election for them, before replacing him with the highly suspect Zumarite, D D Mabusa, it might be as well to also include a provision for the direct election of the President of the Republic by its citizens. Parliament is supposed to choose the President, but so far it has been the general hoi polloi of the ANC who have chosen a name to be rubber-stamped by MP’s. We all know how that’s worked out in the past, and will no doubt work out again in the future, but if we at least choose the person ourselves, we only have ourselves to blame for the outcomes – just saying.