A Constitutional Court Judgement of 11 June 2020, states 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. The unconstitutionality hinged on the unjustifiable limitation on the right to stand for public office and if elected, to hold office. This right is conferred by section 19(3)(b) of the Constitution.
The Judgement does not prescribe, nor provide any guidance as to what the nature and character of the revised electoral system should be, nor any guidance as to how the Electoral Act must be amended, save to say that any amendment must make provision for the exercise of the section 193(b) right. This implies that provision must be made for individuals, or independent candidates to be able to stand for election which would require an amendment to the Electoral Act, and consequently, the electoral system as a whole.
Ebrahim Fakir’s submission to the to the Inclusive Society Institute (ISI) expert panel on electoral reform is made with the overhaul of South Africa’s representation, oversight, accountability and responsiveness governance architecture, in mind. It aims to centre the concerns of voters and citizens, making the electoral process an opportunity for voters to freely discern and deliberate on the electoral choices they wish to make at the level closest to them. It also provides an opportunity for voters to consider how best to exercise their voice in a system that caters to their most immediate concerns and which is also simple and easily understandable. While political parties are important for democracy and democratic governance, they are mere instruments, or ought to be mere instruments, in the hands of voters and so while the interests and concerns of political parties are valid, they are secondary in this proposal to the interests and concerns of voters/ citizens.
About the Author:
Awarded the Ruth First Fellowship for 2014 at the University of the Witwatersrand, Johannesburg – Ebrahim Fakir until recently headed the Political Parties and Parliamentary Programme at EISA [2010-2016]. He was formerly Senior Researcher and Analyst at the Centre for Policy Studies in Johannesburg (2003-2009), he worked at the Institute for Democracy in South Africa (IDASA) [1998-2003] at both IDASA’s Pretoria and Cape Town offices and he also worked at the first democratic Parliament of the Republic of South Africa (1996-1998) in the Legislation and Oversight Division. Before that, he was junior lecturer in English Literature at the then University of Durban-Westville (1994-1996) and continues to teach as a sessional lecturer in contemporary political economy at the Sustainability Institute at Stellenbosch University. He writes in the popular press as well as academic and policy journals on politics, development, and the state. He is used as a commentator and facilitator by the domestic and international media, business and other organisations. He read for a degree in English Literature at the University of the Witwatersrand; Johannesburg where he was elected on to the Students Representative Council. He was visiting fellow at the Institute of Development Studies at the University of Sussex (2005/2006) and was a Draper Hills Summer Fellow at the Centre for Democracy, Development and the Rule of Law at Stanford University, for 2011.
Ebrahim Fakir is the director of programmes at ASRI.