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Ramaphosa’s loophole for missing Electoral Amendment Bill deadline could hold up
Legal action looms if the bill, in its current form, is approved by the president.
A voter places his ballot in the box at the Union Building voting station in Pretoria on 1 November 2021. Picture: Jacques Nelles
As the Independent Electoral Commission (IEC) prepares for the 2024 general elections, the Electoral Amendment Bill is yet to be signed into law by President Cyril Ramaphosa.
The bill was passed in the National Assembly on 23 February, just five days before the suspension of the invalidity order of the Electoral Act came to an end.
The legislation stems from an 11 June 2020 Constitutional Court (ConCourt) ruling that declared the Electoral Act constitutionally invalid as the law made it impossible for candidates to stand for political office without being members of political parties.
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The ConCourt suspended its ruling for 24 months and gave Parliament until 10 June 2022, to rectify the constitutional defects in the act and to make provision for independent candidates to contest elections to the National Assembly and the provincial legislatures.
Parliament, however, had to approach the ConCourt to extend the initial deadline by six months – to 10 December – which the court granted, and yet again until 28 February.
There was uncertainty on whether Ramaphosa would sign the bill into law within the deadline following the passing of the bill, but the Presidency has sought to provide clarity on the matter.
‘Empowered to assent to bills’
Briefing the media a day after the invalidity order had lapsed, Presidency spokesperson Vincent Magwenya highlighted that the deadline was for Parliament to the remedy the Electoral Act.
“The court had set a deadline for Parliament to pass the bill; it was not for the president to sign the bill.
“The president, in terms of Section 79 of the Constitution, is empowered to assent to bills, but more importantly he must fully satisfy himself about the substances of that bill with respect to its constitutionality and about the process, which included the manner in which the constitutional process was done.
“The deadline was not for the president to sign the bill but for Parliament,” said Magwenya on Wednesday.
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A constitutional law expert agreed with Magwenya.
“The judgment creates an explicit obligation on Parliament to pass the bill,” Advocate Mark Oppenheimer told The Citizen on Thursday.
As to whether Ramaphosa was required to approve the bill by 28 February, Oppenheimer suggested that this was “ambiguous” and open to more than one interpretation.
“Arguably it creates a tacit obligation on the president to sign it, but he also has an obligation to ensure it passes constitutional muster,” he said.
Legal action looms if the bill, in its current form, is approved by Ramaphosa.
The Independent Candidate Association (ICA) has indicated that it will approach the ConCourt with an application for direct access after the legislation has been enacted.
Preparation for elections
Meanwhile, the IEC has confirmed that it will utilise its R2.2 billion budget for 2023/2024 for the preparation of the 2024 national and provincial elections. Officials from the commission appeared before Parliament’s Portfolio Committee on Home Affairs this week.
Briefing the committee, IEC chief electoral officer (CEO) Sy Mamabolo said the budget would be “a public investment in the delivery of a national strategy project to compose” the new National Assembly and nine provincial legislatures.
“This budget gives effect to the constitutional promise of regular elections. That’s what this budget is ultimately all about,” he said.
Mamabolo said the IEC planned to hold two national voter registration weekends – one later this year and another next year.
He also said part of the funds would be spent on information and communications technology (ICT) applications, which were necessary to enhance the security of the commission’s IT network.
READ MORE: IEC ‘concerned’ as Electoral Amendment Bill could affect other laws ahead of 2024 elections
“[The budget] also provides materials to be delivered for national registration weekend. It provides for the launch of a vibrant, massive communication and marketing campaign to enthuse South African citizens for participation in the elections.”
According to Mamabolo, the IEC has also taken into account the recently passed Electoral Amendment Bill.
He said the commission has tried to accommodate the operational and financial implications of the bill in the budget process.
The IEC official said that there would be “funding pressures” in the form of the training of staff and workshops, which will be used to promote awareness of the participation of independent candidates in the elections.
The ballot papers would be increased by 50% to accommodate the new regional ballots.
“We did not anticipate the need for a third ballot [paper] which is now a reality and it’s an additional funding pressure,” Mamabolo said.
