Expert panel on electoral reform: First record of discussion

A response to the Constitutional Court judgement of June 2020



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Inclusive Society Institute

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DISCLAIMER


Views expressed in this report do not necessarily represent the views of the

Inclusive Society Institute or those of their respective Board or Council members.


Author: Carene Marais

Editors: Daryl Swanepoel & Roelf Meyer


Setting the scene


In the light of the recent Constitutional Court judgement declaring the current Electoral Act unconstitutional, the Inclusive Society Institute (ISI) has embarked on a process to design potential new electoral models for South Africa. The institute has appointed an expert panel, led by Mr. Roelf Meyer, to undertake the work and has mandated its research panel to design electoral models that respects the findings of the judgement, the boundaries set out in the Constitution, retains proportionality as a basis for representation and which promotes inclusivity and accountability.


The necessity to develop a new electoral model has been spurred by the recent Constitutional Court judgement declaring the current electoral model unconstitutional. The court has given the legislature 24 months to introduce new legislation that will enable independent candidates to stand for election in the national and provincial spheres of government.


The institute’s findings will be presented to the political establishment and public policymakers as its contribution to the formal legislative process, for which the Constitutional Court has set two years aside for the work to be completed.


Both the panel and process will benefit from the deep and varied experience that is represented by these experts. The members are:


Mr. Roelf Meyer: In Transformation Initiative. Chief Government negotiator during the democratic transition in South Africa, former Minister of Constitutional Development, and currently a director of In Transformation Initiative.


Ms. Deyana Isaacs: University of Stellenbosch. Researcher and lecturer in Political Governance at the School of Public Leadership, University of Stellenbosch.


Prof. Dirk Kotze: University of South Africa. Professor in Political Sciences at the University of South Africa (UNISA), a Vice-president of the International Political Science Association and National Secretary of the South African Association of Political Studies.


Prof. William Gumede: University of the Witwatersrand & Democracy Works. Professor at the University of the Witwatersrand School of Governance and Chairperson of Democracy Works Foundation.


Mr. Ebrahim Fakir: Auwil Socio-Economic Research Institute. Political commentator and Director of Programs at Auwil Socio-Economic Research Institute. Former academic, head of political parties and parliamentary programme at EISA, visiting fellow at the Institute for Development Studies at the University of Essex, and visiting Drapre Hills Summer Fellow at Stanford University.


Ms. Dren Nupen: The Elexions Agency. Former Executive Director of the Electoral Institute of Southern Africa and former Regional Director for Africa at the Open Society Initiative. She brings extensive election experience to the dialogue.


Prof. Firoz Cachalia: University of the Witwatersrand. Professor at the Law School at the University of the Witwatersrand.


Professor emeritus Jørgen Elklit: Aarhus University, Denmark. Member of the South African 1994 IEC and of the 2002-2003 Electoral Task Team (aka the van Zyl Slabbert Commission). Formerly also a member of the board of directors of EISA. Secretary to the 2008 Independent Review commission in Kenya.


Prof. Cherrel Africa: (Flexi-member) University of the Western Cape. Formerly at the Institute for Democracy in South Africa, election analyst for the SABC and ENCA and currently associate professor and chair for political sciences, University of the Western Cape.


Prof. Rassie Malherbe: University of Cape Town. Currently offers an extra-curricular programme in the drafting of legislation at the University of Cape Town. Former professor of public law and Head of the Department of Public Law at the University of Johannesburg.


Dr. Denis Kadima: Electoral Institute of Southern Africa. Currently Executive Director of EISA. Previously, Senior Programme Manager at the National Democratic Institute for International Affairs.


Dr. Brigalia Bam: Private. Former Chairperson of the Independent Elections Commission of South Africa.


Mr. Daryl Swanepoel: Chief Executive Officer of the Inclusive Society Institute and former Member of Parliament.


Content


Setting the Scene


Content


1. Introduction


2. Unpacking the constitutional judgement declaring the electoral act invalid


3. Discussion on the judgement and preferences related to new models that need to be

developed


4. Assessing and determining the degree of electoral reform that is desired


5. Conclusion


References


1. Introduction


The Constitutional Court, on 11 June 2020 declared that it “is declared 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” and that the “declaration of unconstitutionality referred to in paragraph 4 is prospective with effect from the date of this order, but its operation is suspended for 24 months to afford Parliament an opportunity to remedy the defect giving rise to the unconstitutionality.”


The Constitutional Court thus declared the current electoral act as unconstitutional in that it believes independent candidates have the right to participate in both national and provincial elections. It is now a constitutional requirement to reform the act in light of the ruling. Therefore, the purpose of the panel is to draft some proposals on reforming the country’s electoral system to allow for independent candidates at provincial and national levels.


The objectives of the panel are to design electoral models that will:

  • Respect the findings of the Constitutional Court judgement declaring the current Electoral Act invalid

  • Respect the boundaries set out in the Constitution

  • Retain proportionality as a basis for representation

  • Promote inclusivity

  • Allow for independent candidates to participate in elections at provincial and national levels

Other objectives as set out by the panel also include:

  • Conceptualise proposals as how to address the limitations of the current electoral model

  • Present the proposals to the African National Congress (ANC), the National Assembly, public policymakers, civil society, and the broader public

The project is planned to take place in 5 phases; however, the process may also require some flexibility to be adjusted as is necessary. The first phase is aimed at attaining a clear understanding of the judicial prescript as it relates to the electoral act, while also understanding the boundaries in terms of the Constitutional requirements and what such a reformed electoral system needs to look like. Moreover, the panel will also work towards developing a set of guiding principles that should be incorporated into the panel’s legislative proposals, whilst also gaining consensus on the boundaries that should be applied when developing these proposed models.


As part of phase 1 of the process, the expert panel held its first discussion on Monday, 20 July 2020. The aim of this initial discussion was to gain a common understanding of the court’s intentions and to develop the parameters that will guide the panel’s deliberations.


The panel met again on 3 August 2020 to further elaborate on the boundaries of the research to be undertaken in the development of a new electoral model for South Africa, while also assessing the strengths and challenges of the country’s current electoral system. During this meeting, the suggestion was made to extend the panel’s work beyond the mere development of a technical model that would accommodate the requirement for independent candidates to stand for election. It would also use this opportunity to develop proposals as to how to address the limitations of the current electoral model. Presentations were made to the effect that when developing the proposed models, consideration would be given to systems that would improve accountability to the voters by elected representatives and promote meaningful and inclusive demographic representation within the legislatures.


The second phase of the process will comprise of presentations by other international experts regarding electoral models in other jurisdictions that combine proportionality with the right for independent candidates to participate. To this end, the third meeting of the expert panel is scheduled for 25 August 2020. The main purpose of the meeting will be to stimulate the panel’s thinking as to what electoral model will be best suited for the South African environment, by presenting a number of electoral models from various jurisdictions. Prof Elklit will also give a presentation on the electoral models contained in the 2003 van Zyl Slabbert Commission on Electoral Reform, together with the motivations behind each of the models.


The presentations will be preceded by a short dialogue by the panel to discuss the limitations and weaknesses of the current electoral system that would need to be considered and addressed as part of the broader electoral modelling exercise. The expected outcome of the meeting: Agreement as to which limitations contained in the current electoral system need to be addressed in the work of the panel; and insight into existing electoral models combining proportionality with the right of independents to stand for election.


Furthermore, as part of the second phase in this process, the next discussion of the panel will follow, where each panellist will be asked to develop their thinking around models that they think will work within the South African context, based on the previous two discussions and the presentation on the different electoral models.


The aim of the third phase will be to narrow down the different models, as presented by the panellists, to two or three options which can be presented to policy makers for consideration. During this phase, the preferences of the expert panel will be expressed.


During phase 4, the institute will develop a report based on the proposed electoral models. Once this report has been completed, the concepts will be tested with the broader public and civil society by means of surveys, focus groups and stakeholder engagements.


Lastly, in the final phase (phase 5) of the process the models will be adjusted based on the feedback from the public and stakeholder engagements and presented to politicians and policy makers as the panel’s proposed electoral models that would best suit the context and needs of the South African society today.


2. Unpacking the Constitutional judgement declaring the

Electoral Act invalid


A subsequent analysis by one of the expert panel’s members regarding the Constitutional Court’s judgement declaring the current electoral act unconstitutional, provides a concise summary of the judgement.


On 11 June 2020, the Constitutional Court declared the following:


“4. It is declared 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. 5. The declaration of unconstitutionality referred to in paragraph 4 is prospective with effect from the date of this order, but its operation is suspended for 24 months to afford Parliament an opportunity to remedy the defect giving rise to the unconstitutionality.”


Upon assessment, the judgement does not provide extensive guidance but is focused on the shortcoming or deficiency of the electoral act with regards to independent candidates. Moreover, the judgement also does not provide guidance as to how the act should or can be amended. The electoral act is subject to the Constitution, and therefore the task of the panel must be accomplished without breaching the Constitutional boundaries relating to electoral systems.


The following provisions in the Constitution can be considered boundary posts regarding the amendments that can be made to the electoral act:


Section 1(d): Multi-Party democracy


Section 1 in the Constitution is the value clause that speaks of multi-party democracy. The Constitutional Court was referred to this clause, however, its view on the matter is that independent candidates do not stand in the way of or impede on the functioning of multi-party democracies. This is considered a boundary post, as the amendments that give effect to the judgment may not undermine this value clause. It is also of importance since this value clause is in the Constitution to safeguard South Africa from becoming a one-party state.


Section 19(3)(a) Right to vote


This section is normally seen as comprising four aspects:

  1. General - For all who qualify according to the basic requirements to vote.

  2. Equal - To ensure that some votes do not weigh more of less than others, which has an implication for the type of electoral system that is established and how, in this case, independent candidates can be accommodated.

  3. Direct - Every vote has a direct influence on the outcome

  4. Secret - Every voter votes voluntarily and without coercion

Therefore, equality of the votes forms another boundary post that affects the amendment. An electoral system cannot be established where some votes outweigh others. Independent candidates cannot be accommodated in such a way that the votes brought out for them weigh more or less than for others.

Section 19(2): Right to Free, Fair and Regular Elections

Section 19 is of importance as it is the political rights in the bill of rights. Three aspects are contained in this section:

  1. Regular elections - Legislature has a fixed term, enforcing that there will be elections at regular intervals.

  2. Free - To participate without interference or coercion and to ensure that candidates and political parties must be able to participate.

  3. Fair - Equal opportunity for all parties or candidates to contest the elections.

These aspects will have a bearing on the type of amendments made to the electoral system.


Sections 46 and 105: Electoral system that results, in general, in proportional representation


Section 105 refers to the provinces.


Proportional Representation (PR) is not defined in the Constitution. However, it may include: Proportional Representation of political parties and Proportional Representation as to voter preference.


There are many PR systems that give effect to both PR for political parties and voter preference such as list-systems, preferential systems, and combined systems. The current South African electoral system is based on party-list proportional representation, which means that parties are represented in proportion to their electoral support. The preferential system entails that the voter can indicate preference for a party and candidates on the ballot. The ballot can list party representatives in order of preference and can also move over party lines in this system. The combined systems incorporate PR with constituencies.


Therefore, section 46 and 105 of the Constitution serves as another boundary post within which amendments to the system must be made. The system chosen must, in general, provide for Proportional Representation. Additionally, within the Constitution and consequently, because of the court judgement, parliament assumes the responsibly to choose a particular electoral system. The particularities of the system are left to parliament and it has some leeway on how to give effect to the judgement.


Section 19(3)(b) Right to stand for and if elected to hold public office

This is the provision that the Constitutional Court judgement focused on and forms the main grounds for the Electoral Act being declared as unconstitutional. Within the current electoral system, the exercising of section 19(3)(b) right can only be channelled through political parties. Therefore, the act does not provide for candidates to participate in elections as individuals or independent candidates. This is the crux of the judgement and what the majority of the courts’ ruling dealt with.


Furthermore, Justice Mandlanga added another aspect, which can also be considered a boundary post, namely: section 18 the Freedom of Association. Justice Mandlanga’s argument was that this also includes the freedom NOT to associate. Under the current electoral act, candidates are “forced” to join a political party in order to be a candidate and exercise their right under 19(3)(b), which negates the right NOT to associate. therefore, the electoral act violates this right.


Furthermore, the court also dealt with a number of other provisions that was put to the court, including the following:

  • Sections 46(1)(a) AND 105(1)(a): The electoral system is prescribed by national legislation. The national legislature (parliament) is subject to the Constitution, thus whatever the national legislature decision, it is still subject to the Constitution.

  • Sections 47(3)(c) AND 106(3)(c): Loss of membership of legislatures. The Constitutional Court said that this only applies to political parties and does not affect the issue of independent candidates.

  • Sections 57(2), 178(1)(h), 193(5) AND 236: Participation by parties in legislatures.

  • 57(2): deals with the rules and orders of the national assembly providing for minority parties to participate in the proceedings.

  • Section 70(2): Rules and orders of National council of provinces providing for participation.

  • Section 116(2): rules and orders of Provincial legislatures providing for participation

  • Section 178: Participation of opposition or minority parties in the process for the appointment members of the judicial service commission.

  • Section 193(5): Deals with chapter 9 institutions where minority parties will also participate.

  • Section 236: Legislation to be made for the funding of political parties

All these provisions are about political parties’ participation in legislature. The court found that that these provisions strengthen multi-party democracy and do not prevent making provision for independent candidates to participate. These are boundaries that dictate that whatever amendments are made; they cannot undermine the participation of parties in legislature.

  • Section 157(2)(a): The municipal election system can either be a pure PR system according to the list system where only parties are being presented on the ballot or a PR system combined with wards. This section does not affect the national and provincial spheres. Thus, this only affects municipal level and does not prevent the court to declare the electoral act unconstitutional.

  • Section 6, Items 6(3)(a) and 11(1)(a): Nominations by Political Parties. This only refers to the first elections after the 1996 Constitution came into effect and is thus not applicable anymore and have no current influence.

In conclusion, all the above listed sections are boundary posts that the Constitution imposes on the electoral act and the amendments brought to the act. These can be viewed as the most important ones within which the amendment of the acts must take place. Below is a diagram representing the constitutional boundary posts.



3. Discussion on the judgement and preferences related

to new models that need developed


The question of “Proportional Representation (PR), in general” was an important point of discussion, pertaining to how this needs to be considered and incorporated as part the court ruling. It was emphasised that PR as stipulated within the Constitution must remain a prominent boundary point when considering reforms to the electoral system that will provide for the participation of independent candidates.


Absolute proportionality under any system does not exist and that is one of the reasons for the use of “in general”. Sometimes a political party falls short of the votes for representation of a next member in national assembly. The surplus is allocated elsewhere and thus the end result is not 100% propositional. However, it was noted that, currently, South Africa’s electoral system is the most proportional of all systems in the world due to the fact that an electoral threshold on the size of the National Assembly does not exist.


This means that parties get a certain number of seats in parliament according to the percentage of votes that they receive in an election. So, for example, if your party gets 15% of all the votes in the country then it gets close to 15% of the seats in Parliament. There are 400 seats in the national parliament, so for every 0.25% of the vote a party gets -in principle- 1 seat. “In general” does not give any additional meaning to it, but the constitution demands that the electoral system must result in proportional representation.


Consequently, it can be argued that when independent candidates are incorporated within the electoral system the requirements pertaining to PR can be the same as for political parties. If the independent candidate gets sufficient votes and qualifies to get into national assembly or provincial legislature they will be regarded as a “type of party“ and it will need to be assessed if the number of seats allocated to those candidates correlates with the distribution of votes in the election. The challenge for them could be how to get to the minimum number of votes to gain a seat in legislature. The campaign system must thus also make provision for candidates to gain exposure.


The key point regarding PR is that representation must be a result of the voting and thus the composition of parliament must reflect in a proportional manner, the preferences of the voters.


Furthermore, it was highlighted that regardless of the electoral system proposed by the panel, several issues will need to be considered. South Africa’s current electoral system functions on two house system, with one house being the National Assembly and the other being the National Council of Provinces (NOCP). Some of the necessary considerations when implementing a PR electoral system, where the size of parliament is fixed and incorporating independent candidates includes the following:

  • Should independent candidates or lists of independent candidates be allowed in both houses?

  • Should the PR electoral system be the same for both houses?

  • Should the system allow voters to cast their votes for one (or more) individual candidates (so-called personal or preferential votes) or shall it only be possible to vote for the list as such?

  • Should independent candidates or list of independent candidates be allowed for both houses?

  • What will the ballot papers requirements be pertaining to:

  • Parties elected in previous parliament and still represented in parliament? Direct access, a deposit, or a certain number of seconding voters?

  • New parties? Payment of deposit or a certain number of seconding voters?

  • Independents or lists of independents, if allowed? Payment of a deposit or a certain number of seconding voters?

  • Will electoral thresholds be different or the same for parties and individual independent candidates, for example based on a certain percentage of the vote, an absolute number of votes or some other criteria?

These options and key decisions must be assessed by the electoral panel through their considerations and debates pertaining to the different levels of electoral reform that the panel will consider in developing proposed electoral models for the South African context. Furthermore, the argument has been made that if individual candidates are to be accommodated in the PR system, then apart from the electoral act having to change, the political party funding act has to be amended to require Individuals to also disclose funding and support they receive.


Moreover, during the discussion on the court judgement, it was also debated whether the national and provincial legislatures, may have to re-think how they function, as a consequence of the judgement and the requirement of incorporating independent candidates. Furthermore, this also raised the question of what impact this amendment to the act would have on the rules and functions of legislature, and if this may require some constitutional amendments.


As it stands, the rules of the national assembly under section 57(2)(b) of the constitution, indicates that the representation of political parties is also accommodating to minority parties and currently not every political party is represented on every committee in the national assembly. Consequently, with the incorporation of independent candidates this could also be the case. Therefore, the argument was made that as the wording on party representation stands (minority parties), it may in future not be adequate to provide for the participation or representation of independent candidates.


While discussing the desired preferences and guiding principles that a new electoral model would need to include, A presenter proposed a number of core elements that should be focused on within a new system. Additional points raised indicated that a new system would need to provide greater ability for voters to directly elect candidates, as well an influence over how party candidates are elected. The current electoral system does not create any room for this.


The electoral systems must continue to encourage diversity through minimising racialised and class-based electoral election results, as well as demographic, ethnic and religious diversity through the diversity of candidates. The system should be relatively simple to administer and to be navigated by voters. Furthermore, it was also argued that for any meaningful balance between accountability, responsiveness and representativity, inclusivity, and diversity to be achieved, bold comprehensive reforms that are in the public interest, more so than that of political party or personalities, may be necessary.


Therefore, the following guiding principles should be considered in the drafting of a new electoral system or model:

  • Representation: Representation should be translated into legislative seats and needs to represent the expressed will of the voters as to the people who will represent them. Representation can take the form of geographical representation where the voters in each region, town city, province or electoral district choose the candidates who will represent them, and these candidates are ultimately accountable to the voters in these areas. Other forms of representation are prescriptive representation where national legislature is a mirror of the nation or ideological representation, according to the party politics or ideology to which voters align themselves. Additionally, the lack of constituency-based voter representation should be considered.

  • Transparency: Transparency should exist in both the process as well as the electoral system.

  • Inclusiveness: The electoral system should be easily understandable and accessible to all voters in order to create a system that can allow as many as possible citizens to vote.

  • Increased Accountability: Increased accountability is fundamentally important as the current system allows for a trade-off between accountability and representation.


4. Assessing and determining the degree of electoral

reform that is desired


In order to determine the degree of electoral reform that is desired, and the options that can be explored while considering some guiding principles, as well as the constitutional boundaries identified, an analysis of the strengths and weaknesses of the current electoral model was proposed.


Presentations by the two of the members on the electoral expert panel outlined the strengths and challenges of South Africa’s current electoral system. The strengths of the current system are related to the emphasis that is placed on multi-party politics which aims to include as many political parties as possible. The current system also provides for diversity of political parties; therefore, voter have various parties to choose from although they cannot exercise choice over specific candidates. Moreover, diversity of pollical preferences, various demographics, ethnicities, and religious diversity are also represented through political parties.


The current system further provides the possibility for minority parties to secure seats due to the PR system. Other strengths of the system also include the fact that votes carry equal power, and that the system is relatively simple to be administered and easily understood by voters.


Furthermore, the panellists also presented some of the challenges pertaining to the current electoral system. Firstly, some of these issues are related to representivity as voters are currently only represented through multiple parties and not in the form of multiple candidates. Furthermore, as the current electoral system operates through a closed party list system, voters are unable to express their personal preferences regarding the candidates elected as party representative, as they cannot directly influence these appointments.


Secondly, voters do not have any direct influence over who will become their representatives in legislature. Similarly, voters do not directly influence the election of the president as this is carried out by the National Assembly. Therefore, this could possibly lead to the election of party candidates or presidents that do not possess the necessary expertise and capabilities required in the legislature.


This further presents an accountability challenge to voters as they cannot hold individual candidates accountable and cannot recall ineffective representatives. Although the system does allow voters to raise their complaints with the party structure, as has been seen, this rarely influences the branches to take action against representatives.


Moreover, fairness is also compromised in the relationship between votes cast and the composition of the legislature and cabinet. Voters can cast their vote for a specific political party, but they have no influence over the composition of the legislature after they have cast their ballot, as these appointments are determined by the party leadership.


It was further highlighted that the ruling party appointed candidates in legislatures rarely question the executive, lest they be removed by the party. Consequently, the risk is created where legislatures can become a lame-duck and lose public credibility and trust. This forces extra-parliamentary politics, where politics happen outside parliament and civil society becomes involved.

Furthermore, citizens and civil society approach the courts to deal with issues that should be dealt with by legislature. Overall, the aforementioned challenges result in large numbers of voters becoming disillusioned, resulting in many citizens choosing not to participate in formal politics but rather engaging in extra-parliamentary politics. Moreover, these system weaknesses also culminate in the youth becoming disinterested and steering away from the multi-party system in the country.


During the second dialogue discussion, the panel also addressed some of the practical considerations that should guide their thinking regarding a new electoral system. Practically, developing a new electoral system will take time to devise. Therefore, the 24-month time limit as stipulated by the court judgment must be considered, as it may not be possible to execute far-reaching changes within the 24-month period.


Moreover, the cost factor should also be a focus, as a new system may be expensive, potentially complicated to be administered and difficult to be understood by voters. The point was raised that only changing of parts of the system, in its most limited form, would create room for independent candidates, but could possibly be easier, less costly, and quicker. However, problems with the overall system will remain under this option.


Consequently, it was pointed out that the criteria for a new system should not compromise on providing representation and making elections accessible and meaningful. Moreover, the system should empower voters to participate in elections and needs to ensure that voters experience that their votes count and are meaningful. The new system should also provide an incentive for conciliation as a conflict management tool between parties or individuals.


Furthermore, the new system should facilitate stable and efficient governance and includes measures for holding the government and individual representatives accountable. Legislative opposition and oversight should be promoted, and the system should encourage political parties. The election process must be workable, sustainable, cost effective and viable for every election. Additionally, international standards should be taken into account to ensure free and fair elections, the secrecy of the ballot and the principle of one-person-one-vote.


While debating the different options available regarding a new electoral system, the question arose whether reforms should only be limited to including independent candidates or if some should apply to the whole system? If the panel choose to address wider reforms of the whole electoral system, then the question becomes, should they change the system within proportional representation or go outside of the system and essentially create a new system? This could however require major constitutional amendments, which the panel believes best to steer away from.


Thus far, three different options for reform were identified by the different presenters on the panel:

  • Option 1: Amending the current system to allow for independent candidate. The question to consider is if it can be done in such a way to resolve the weaknesses of the current system, and will the most minimal reforms remove the weaknesses of the current system?

  • Option 2: Amending the current Proportional Representation system to deal with the weaknesses of the system and make the changes needed to allow for independent candidates.

  • Option 3: Changing the entire electoral system and including the changes needed to allow for independent candidates.

One of the key points raised during the panel discussion indicates that one of the biggest needs in a new system is accountability. However, in addressing this issue, as well as the other challenges currently facing the electoral system, the practicalities of developing a new system will consciously need to be considered. This includes, but is not limited to, the costs of a new system; conceptualising a system that can be understood by voters; and choosing a model that can also be effectively administered during each election.


5. Conclusion


Following the two discussions held regarding electoral reform, it was emphasised that the re-design of an electoral system should fit within the current boundaries of the Constitution and the prescripts of the Constitutional Court judgement. Therefore, this will entail the retention of an electoral system that results, in general, in proportional representation, along with mechanisms providing for independent candidates to stand for election at all three spheres of government. However, it should be noted that any eventually that could require some amendments to the constitution in order to implement the amendments required, should not be entirely disregarded at this stage.


The next phase of deliberations will continue on 25 August 2020. The main purpose of this meeting will be to inform the panel’s thinking on what model will best suit the South African context, through exploring several different electoral models from various jurisdictions, including the German, Spanish, Danish and Irish electoral models.

Additionally, Prof Elklit will also do a presentation on the electoral models contained in the 2003 van Zyl Slabbert Commission on Electoral Reform, together with the motivations behind each of the models. The models all combine proportionality with the right of independent candidates to stand for election, which should serve to inform the panel on examples of implemented alternative electoral models.


The expected outcome of the discussion includes reaching an agreement as to which limitations contained within South Africa’s current electoral system must be addressed through the work on the panel, as well as gaining insights into existing models that combine proportionality and participation of independent candidates in elections.


References


Inclusive Society Institute, 20 July 2020, Electoral reform dialogue with expert panel.


Inclusive Society Institute, 3 August 2020, Electoral reform dialogue with expert panel.


Prof Rassie Malherbe, 3 August 2020, Boundaries for Amending the Electoral Act.


Professor Jørgen Elklit, 21 July 2020, Decisions necessary for implantation of a PR electoral system.


Ebrahim Fakir, 14 June 2020, “Constitutional Court hands MPs an electoral reform nettle to grasp. Parties won't want to vote for legislation that spells their own demise”, Sunday Times. Available at: https://www.timeslive.co.za/sunday-times/opinion-and-analysis/2020-06-14-constitutional-court-hands-mps-an-electoral-reform-nettle-to-grasp/[accessed: 14 August 2020].


Ebrahim Fakir, 25 June 2020, “A referendum thorough-going system reform is the way to political rehabilitation”, Africa News 24-7. Available at: https://www.africanews24-7.co.za/index.php/southafricaforever/a-referendum-and-thorough-going-system-reform-is-the-way-to-political-rehabilitation/ [accessed: 14 August 2020].


Prof William Gumede, 3 August 2020, Electoral Reform presentation regarding the Challenges of the current electoral system, Democracy Works Foundation.


Deyana Isaacs, 3 August 2020, Presentation on Electoral Reform Criteria, School of Public Leadership at Stellenbosch University.


The Constitution of the Republic of South African, (1996). Government Gazette. (No.17678).


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This report has been published by the Inclusive Society Institute

The Inclusive Society Institute (ISI) is an autonomous and independent institution that functions independently from any other entity. It is founded for the purpose of supporting and further deepening multi-party democracy. The ISI’s work is motivated by its desire to achieve non-racialism, non-sexism, social justice and cohesion, economic development and equality in South Africa, through a value system that embodies the social and national democratic principles associated with a developmental state. It recognises that a well-functioning democracy requires well-functioning political formations that are suitably equipped and capacitated. It further acknowledges that South Africa is inextricably linked to the ever transforming and interdependent global world, which necessitates international and multilateral cooperation. As such, the ISI also seeks to achieve its ideals at a global level through cooperation with like-minded parties and organs of civil society who share its basic values. In South Africa, ISI’s ideological positioning is aligned with that of the current ruling party and others in broader society with similar ideals.


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