Parliament will proceed with the Electoral Amendment Bill as it waits to see whether the Constitutional Court (ConCourt) will grant an extension.
The Portfolio Committee on Home Affairs met on Tuesday to consider the motion of desirability (MOD) on the bill, which was introduced to amend the Electoral Act 73 of 1998.
During the virtual meeting, the committee said it was of the view that the legislation was desirable to amend the Electoral Act.
“You will recall that in our last meeting we reflected and agreed that we must proceed with the Electoral Amendment Bill,” the committee’s chairperson, Mosa Chabane said.
The committee’s secretary, Eddie Mathonsi, said the MOD will, however, not be sent to the National Assembly yet.
“We are not going to serve it to the National Assembly because we are still processing the bill. At the end that’s when we will send the report,’ he said.
The committee also recommended, by majority vote, Glen Mashinini for appointment as Electoral Commission of South Africa (IEC) chairperson to the National Assembly, which will then recommend a candidate for President Cyril Ramaphosa to appoint.
Mashinini’s seven-year term in the IEC office came to an end in April this year.
Nine candidates were interviewed for the position after three withdrew their applications.
It remains unclear whether the committee will be given more time to finalise amendments to the bill so independent candidates can contest national and provincial elections.
All the while, the 10 June deadline is fast approaching.
National Assembly Speaker Nosiviwe Mapisa-Nqakula on 25 April officially lodged an application with the ConCourt for a deadline extension.
The committee previously said it needed more time – at least six months – to undertake an “extensive and meaningful” public participation process.
Now with the ConCourt having yet delivered a judgment as of 31 May, it looks like the committee might miss the deadline to fix the law.
The ConCourt on 11 June 2020 ruled that Section 19 of the Electoral Act was unconstitutional for not allowing independent candidates to contest provincial and national elections.
In its ruling, the court suspended its order of the Act’s invalidity for 24 months until 10 June, which then required Parliament to make the necessary amendments “to remedy the defect giving rise to the unconstitutionality” in this period.
Parliament argued for an extension because the Bill was only introduced to the National Assembly on 10 January 2022 – leaving the committee with “only five months to process a bill of such public significance and interest”.
2024 elections in jeopardy?
Given that the bill is yet to be adopted, the 2024 nationals elections could possibly not be held within the constitutionally stipulated five-year interval since the IEC needs a strict 24-month timetable to organise a free, fair and credible elections
Terry Tselane, executive chair of the Institute of Election Management Services in Africa and former IEC vice-chairperson, told City Press recently it was doubtful that the ConCourt would agree to an extension.
“I am anxious about the fact that Parliament seems not ready to deliver on the judgment. The court made it quite clear that no extension was going to be allowed after the Speaker had initially requested to be given 36 months to effect the changes,” he said.
It will not be possible, Tselane indicated, to hold the elections in 2024 if the ConCourt agrees to the extension because the IEC would require sufficient time to prepare.
“If the IEC is not able to deliver the elections within the remaining period, that would mean that the 2024 elections would have to be postponed,” he added.
OneSA Movement leader Mmusi Maimane called on the IEC to oppose the court action by Parliament.
Meanwhile, civil organisation New Nation Movement (NNM), which initially challenged the Electoral Act in 2019, instructed its lawyers to oppose Parliament’s application.
“We are saying that, instead of six months, Parliament must be given 12 months so that this process is done properly and that all the interested parties – including the minister of home affairs, the IEC and National Council of Provinces – work closely together in delivering an Electoral Act that is going to be a true reflection of what our Constitution says,” NNM executive director Bulelani Mkhohliswa told City Press.
Provided all key players are involved, Mkhohliswa said 12 months would be enough time for the IEC to ready itself for the 2024 elections.