OVERVIEW OF THE CONSTITIONAL COURT JUDGEMENT AND
Description: OVERVIEW OF THE CONSTITIONAL COURT JUDGEMENT AND PROCESSES UNDERTAKEN THIS FAR 20210316 1 On the 20th June 2020, the Constitutional Court (CC) passed judgement in the Case of New Nation Movement NPC and Others vs the President of the
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slide1. OVERVIEW OF THE CONSTITIONAL COURT JUDGEMENT AND PROCESSES UNDERTAKEN THIS FAR 2021/03/16 1<br>
slide2. On the 20th June 2020, the Constitutional Court (“CC”) passed judgement in the Case of New Nation Movement NPC and Others vs the President of the Republic of South Africa and Others 2021/03/16 2<br>
slide3. The Constitutional challenge was aimed at Electoral Act, 1998 (Act No. 73 of 1998) which the applicants argued is unconstitutional
The Constitutional challenge was based on:
Section 18
Sections 19(1) and 19(3)(b)
Of the Constitution of the Republic 2021/03/16 3<br>
slide4. Section 18
“Everyone has the right to freedom of association”.
Section 19(1)
“Every citizen is free to make political choices, which includes the right –
to form a political party
to participate in the activities of, or recruit members for, a political party; and
to campaign for a political party or cause” 2021/03/16 4<br>
slide5. Section 19(3)(b)
“Every adult citizen has a right
….
to stand for public office and, if elected, to hold office”
There were two (2) central issues before the CC:
First, whether the electoral system only through political party membership unjustifiably limits the right to freedom of association in terms of Section 18 of the Constitution
Secondly it involves the content of the right contained in Section 19(3)(b) of the Constitution and whether the Electoral Act, 1998 (Act No. 73 of 1998) unjustifiably limits that right
4. The CC reasoned (when dealing with Sections 18 and 19(3)(b) that the right to freedom of association becomes central in the interpretative exercise to determine the content of Section 19(3)(b) of the Constitution 2021/03/16 5<br>
slide6. 5. On the question of whether Section 18 included the negative element, the CC relied on:
The European Court of Human Rights
African Court on Human and People’s Rights
and
The Canadian Supreme Court.
These judgements ruled that freedom of association includes also a negative right, simply put, freedom NOT to associate 2021/03/16 6<br>
slide7. Hence the CC held that freedom of association implies freedom to associate and freedom not to associate.
Practically it means that independent candidates should be allowed to exercise their right to stand for public office, and if elected, to hold office, WITHOUT BEING COERCED TO JOIN A POLITICAL PARTY 2021/03/16 7<br>
slide8. The majority judgement under Madlage J. further reasoned that the denial implicit in the Electoral Act and proper interpretation of Sections 18 and 19(3)(b) of the Constitution impacts on the right to dignity under Section 10 of the Constitution.
Section 10
“Everyone has inherent dignity and the right to have their dignity respected and protected”. 2021/03/16 8<br>
slide9. Jafta J in support of the majority judgement, however, reasoned that it is not necessary to rely on other sections, such as Section 10 of the Constitution.
Fronemen J, delivered a dissenting judgement in which he considered the judgement of the majority to be flawed for not having proper regard to the constitutionally required electoral framework within which the right “to stand for public office and, if elected the right to hold office”. He drew attention to the fact that Section 46 and Section 105 of the Constitution do not permit a mixed system and the fact that the mixed system is not mentioned in the Constitutional permissible electoral arrangement in the national and provincial levels and as such it cannot be read as a constitutionally prescribed requirement. 2021/03/16 9<br>
slide10. According to Fronemen J, this silence on the part of Parliament means that standing for elections as independent (not through a political party) is prohibited.
11. The Order:
“it is declared that the Electoral Act, 1998 (Act No. 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.
12. 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. 2021/03/16 10<br>
slide11. The Constitution of the Republic requires that an electoral system be introduced through the enactment of national legislation.
In 1998, the Electoral Act, 1998 (Act No. 73 of 1998) (Electoral Act) was passed by Parliament and retains that system of proportional representation for elections for the National Assembly and Legislatures of the nine provinces. 2021/03/16 11<br>
slide12. What must be borne in mind is that the Electoral Act in 1998 did not deal with the issue of an electoral system as required by the final Constitution. It relied on interim mechanisms taken from the Interim Constitution.
15. To remedy this on 2 March 2002, the Cabinet appointed the Electoral Task Team (Slabbert Task Team) to draft a new legislation that would come up with an electoral system. 2021/03/16 12<br>
slide13. The Slabbert Report proposed an electoral system which is a multi-member constituency system whereby 300 members of the National Assembly must be elected through such constituencies whereas 100 members of the National Assembly must be elected through a closed party list by political parties.
However, some members of the Slabbert Task Team favoured the current electoral system 2021/03/16 13<br>
slide14. No steps were taken to implement the recommendations of the Slabbert Task Team.
Hence successive elections were held in terms of the current interim electoral system.
During November 2017 a High Level Panel (HLP) led by former President Kgalema Motlanthe released a report reviewing current legislation, including the Electoral Act.
The HLP recommended that Parliament should amend the Electoral Act to provide for an electoral system that makes Members of Parliament accountable to constituencies on a proportional representation and constituency-based system for national elections.
The recommendation of the HLP too were not implemented
ELECTORAL SYSTEM
In the majority judgement by Madlanga J, the CC was fully aware of the doctrine of separation of powers and did not venture into the question as to which electoral system affords the electorate accountability, fairness, etc, etc. 2021/03/16 14<br>
slide15. To this end, the CC said:
“That is territory this judgement will not venture into. The Pros and Cons of this or the other system are best left to Parliament which … has a mandate to prescribe on electoral system”. 2021/03/16 15<br>
slide16. Now here we are, representing Parliament
We have a very important Question to Answer:
Does it really matter which electoral system a country adopts??
25. I am not going to answer this question for you. This workshop or any other future forum will have to answer it. 2021/03/16 16<br>
slide17. However I want you to ponder the following:
In 1948, the National Party came to power. It changed the course of this country in a way unimaginable.
But the National Party polled only 37% of the total votes. The then party in power polled 49% of the total votes, i.e more than 12% of what the National Party polled, but lost the election. 2021/03/16 17<br>
slide18. In England, the Conservative Party under Margate Thatcher adopted far-reaching right-wing economic and social policies. But it came into power with only 41% of the votes.
Tony Blair did the same in 1997 and 2001. His Labour Party came into power with 43% of the votes. 2021/03/16 18<br>
slide19. Those types of results were only possible due to a particular type of an electoral system. Such results won’t be possible in other types of electoral systems.
WHAT ELECTORAL SYSTEMS ARE THERE GLOBALLY?
29. A comparative study of international Electoral systems reveals at least five (5) distinct systems, well of course with lots of variations in between 2021/03/16 19<br>
slide20. SINGLE-MEMBER CONSTITUENCY SYSTEM AND FIRST-PAST-THE- POST (FPTP) METHOD
4 Countries were studied
U.K
USA
CANADA
INDIA
The U.K system is what made both the National Party as well as the Conservative Party and the Labour Party to ascend to power despite winning a lesser percentage of votes cast. 2021/03/16 20<br>
slide21. The USA has the same system but with known variation like electoral college or the President standing for election alone separate from the party.
India, a former British Colony adopted the same system but realised it won’t suite their Caste system at all.
Hence India has reserved some constituencies specifically to people belonging to the scheduled castes (SC) and scheduled Tris CST 2021/03/16 21<br>
slide22. MIXED-ELECTORAL SYSTEM (MIXED-MEMBER PROPORTIONAL REPRESENTATION (MMP)
A number of countries utilize this system. Prominent amongst them is Germany which adopted after the second world war.
This system combines party list proportional representation with single member constituency site system.
In these cases, seats allocated under the party list component of the system are used to compensate for any distortions in the seats-to-votes ratio produced at the electoral district (constituency) level.
A number of countries in recent years have adopted this system
Hungary
Italy
New Zealand
Venezuela
Bolivia 2021/03/16 22<br>
slide23. CLOSED-LIST SYSTEM (PARTY-LIST SYSTEM)
South Africa
Spain uses a variation of this, except in its senate.
PREFERENTIAL LIST SYSTEM AND PR SINGLE TRANSFERABLE MIT (STM): A VARIENT OF PROPORTIONAL REPRESENTATION
The Netherlands
Denmark
Finland 2021/03/16 23<br>
slide24. THE AFRICAN CONTINENT
BOTSWANA
First-past-the-Posts (FPTP)
Winner takes all majoritation electoral system – a legacy of the British Colonial system.
This is a single-member constituency system. 2021/03/16 24<br>
slide25. ZIMBABWE
Presidential elections separate from parliamentary elections.
FPTP system with a 10 multi-member constituencies corresponding to the 10 administrative provinces divided into 210 districts.
KENYA
Independent candidates who have not been a member of any political party for at least three (3) months immediately before the date of the election.
Independent candidates running for the position of member of the National Assembly should be supported by at least one thousand (1000) registered voters in the constituency while those running for senate seat must be supported by at least two thousand (2000) registered voters in the country. 2021/03/16 25<br>
slide26. Political parties nominate their candidates at least 45 days before a general election and are prohibited from changing candidates once the nomination is accepted by Independence Electoral and Boundaries Commission.
In a 290 Member Parliament 12 members of the National Assembly are nominated by Parliamentary Political parties to represent youth, persons with disabilities and workers. Here party lists are used in a proportional representation 2021/03/16 26<br>
slide27. In a 47 member senate, 16 women members are nominated by means of political party lists in a proportional representation.
NIGERIA
System of political party in a constituency system
No independents.
SENEGAL
Mixed system of winner-takes-all coupled with a proportional representation.
Independents allowed. 2021/03/16 27<br>
slide28. Back to South Africa
The Constitutional Court ruling of amending Electoral Act, 1998 (Act No. 73 of 1998) leads to consequential amendment of several pieces of legislation:
Public Funding of Represented Political Parties Act, 1997 (Act No. 103 of 1997)
The Electoral Commission Act of 1996
Local Government Municipal Demarcation Act 27 of 1998
The Political Party Funding Act 6 of 2018 2021/03/16 28<br>
slide29. IN IMPLEMENTING THE CONSTITUTIONAL COURT RULING, WILL THERE BE ANY CONSEQUENTIAL AMENDMENT TO THE CONSTITUTION?
We notice that many submissions or proposals contend that there will be no consequential amendment to the Constitution.
One of the such submissions are from the The Inclusive Society Initiative (ISI) 2021/03/16 29<br>
slide30. Interestingly, the ISI panel acknowledges that Sections 47(3)(c), 57(2), 70(2), 116(2), 178(1)(h), 106(3)(c), 193(5) and 236 of the Constitution are about Political parties, participation in Parliament, Judicial Services Commission and Chapter 9 Institutions. 2021/03/16 30<br>
slide31. The workshop will have to look into all these issues.
43. As announced earlier this month, the Department of Home Affairs has appointed a Ministerial Task Team of experts in the various fields to study all these issues and advise accordingly. The Task Team consists of: 2021/03/16 31<br>
slide32. Mahomed Valli Moosa: as the Chair
Pansy Tlakula: Former IEC Chief Electoral Officer and Commission Chair
Professor Daryl Glaser: Head of Political Science at Wits
Dr Sithembile Mbele: Senior Lecturer of Political Science at the University of Pretoria
Advocate Vincent Maleka: Senior Counsel
Mike Sutcliffe: Former Municipal Manager of eThekwini Municipality and Chair of Demarcation Board
Norman Du Plessis: Former Deputy Electoral Officer
Dr Nomsa Masuku: A member of the Electoral Commission but coming on an individual capacity
Two more members may be added 2021/03/16 32<br>
slide33. What will this Committee be doing?
The leader of this Committee is going to speak to you when I sit down, and he will explain that. But amongst other things, the Committee is going to try and help us navigate through this process.
Perhaps help to avoid what Eckstein said in the middle of the last century, and I quote: “It is the easiest thing in the world to get inextricably tangled among the complexities of electoral systems”. 2021/03/16 33<br>
slide34. END 2021/03/16 34<br>
slide2. On the 20th June 2020, the Constitutional Court (“CC”) passed judgement in the Case of New Nation Movement NPC and Others vs the President of the Republic of South Africa and Others 2021/03/16 2<br>
slide3. The Constitutional challenge was aimed at Electoral Act, 1998 (Act No. 73 of 1998) which the applicants argued is unconstitutional
The Constitutional challenge was based on:
Section 18
Sections 19(1) and 19(3)(b)
Of the Constitution of the Republic 2021/03/16 3<br>
slide4. Section 18
“Everyone has the right to freedom of association”.
Section 19(1)
“Every citizen is free to make political choices, which includes the right –
to form a political party
to participate in the activities of, or recruit members for, a political party; and
to campaign for a political party or cause” 2021/03/16 4<br>
slide5. Section 19(3)(b)
“Every adult citizen has a right
….
to stand for public office and, if elected, to hold office”
There were two (2) central issues before the CC:
First, whether the electoral system only through political party membership unjustifiably limits the right to freedom of association in terms of Section 18 of the Constitution
Secondly it involves the content of the right contained in Section 19(3)(b) of the Constitution and whether the Electoral Act, 1998 (Act No. 73 of 1998) unjustifiably limits that right
4. The CC reasoned (when dealing with Sections 18 and 19(3)(b) that the right to freedom of association becomes central in the interpretative exercise to determine the content of Section 19(3)(b) of the Constitution 2021/03/16 5<br>
slide6. 5. On the question of whether Section 18 included the negative element, the CC relied on:
The European Court of Human Rights
African Court on Human and People’s Rights
and
The Canadian Supreme Court.
These judgements ruled that freedom of association includes also a negative right, simply put, freedom NOT to associate 2021/03/16 6<br>
slide7. Hence the CC held that freedom of association implies freedom to associate and freedom not to associate.
Practically it means that independent candidates should be allowed to exercise their right to stand for public office, and if elected, to hold office, WITHOUT BEING COERCED TO JOIN A POLITICAL PARTY 2021/03/16 7<br>
slide8. The majority judgement under Madlage J. further reasoned that the denial implicit in the Electoral Act and proper interpretation of Sections 18 and 19(3)(b) of the Constitution impacts on the right to dignity under Section 10 of the Constitution.
Section 10
“Everyone has inherent dignity and the right to have their dignity respected and protected”. 2021/03/16 8<br>
slide9. Jafta J in support of the majority judgement, however, reasoned that it is not necessary to rely on other sections, such as Section 10 of the Constitution.
Fronemen J, delivered a dissenting judgement in which he considered the judgement of the majority to be flawed for not having proper regard to the constitutionally required electoral framework within which the right “to stand for public office and, if elected the right to hold office”. He drew attention to the fact that Section 46 and Section 105 of the Constitution do not permit a mixed system and the fact that the mixed system is not mentioned in the Constitutional permissible electoral arrangement in the national and provincial levels and as such it cannot be read as a constitutionally prescribed requirement. 2021/03/16 9<br>
slide10. According to Fronemen J, this silence on the part of Parliament means that standing for elections as independent (not through a political party) is prohibited.
11. The Order:
“it is declared that the Electoral Act, 1998 (Act No. 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.
12. 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. 2021/03/16 10<br>
slide11. The Constitution of the Republic requires that an electoral system be introduced through the enactment of national legislation.
In 1998, the Electoral Act, 1998 (Act No. 73 of 1998) (Electoral Act) was passed by Parliament and retains that system of proportional representation for elections for the National Assembly and Legislatures of the nine provinces. 2021/03/16 11<br>
slide12. What must be borne in mind is that the Electoral Act in 1998 did not deal with the issue of an electoral system as required by the final Constitution. It relied on interim mechanisms taken from the Interim Constitution.
15. To remedy this on 2 March 2002, the Cabinet appointed the Electoral Task Team (Slabbert Task Team) to draft a new legislation that would come up with an electoral system. 2021/03/16 12<br>
slide13. The Slabbert Report proposed an electoral system which is a multi-member constituency system whereby 300 members of the National Assembly must be elected through such constituencies whereas 100 members of the National Assembly must be elected through a closed party list by political parties.
However, some members of the Slabbert Task Team favoured the current electoral system 2021/03/16 13<br>
slide14. No steps were taken to implement the recommendations of the Slabbert Task Team.
Hence successive elections were held in terms of the current interim electoral system.
During November 2017 a High Level Panel (HLP) led by former President Kgalema Motlanthe released a report reviewing current legislation, including the Electoral Act.
The HLP recommended that Parliament should amend the Electoral Act to provide for an electoral system that makes Members of Parliament accountable to constituencies on a proportional representation and constituency-based system for national elections.
The recommendation of the HLP too were not implemented
ELECTORAL SYSTEM
In the majority judgement by Madlanga J, the CC was fully aware of the doctrine of separation of powers and did not venture into the question as to which electoral system affords the electorate accountability, fairness, etc, etc. 2021/03/16 14<br>
slide15. To this end, the CC said:
“That is territory this judgement will not venture into. The Pros and Cons of this or the other system are best left to Parliament which … has a mandate to prescribe on electoral system”. 2021/03/16 15<br>
slide16. Now here we are, representing Parliament
We have a very important Question to Answer:
Does it really matter which electoral system a country adopts??
25. I am not going to answer this question for you. This workshop or any other future forum will have to answer it. 2021/03/16 16<br>
slide17. However I want you to ponder the following:
In 1948, the National Party came to power. It changed the course of this country in a way unimaginable.
But the National Party polled only 37% of the total votes. The then party in power polled 49% of the total votes, i.e more than 12% of what the National Party polled, but lost the election. 2021/03/16 17<br>
slide18. In England, the Conservative Party under Margate Thatcher adopted far-reaching right-wing economic and social policies. But it came into power with only 41% of the votes.
Tony Blair did the same in 1997 and 2001. His Labour Party came into power with 43% of the votes. 2021/03/16 18<br>
slide19. Those types of results were only possible due to a particular type of an electoral system. Such results won’t be possible in other types of electoral systems.
WHAT ELECTORAL SYSTEMS ARE THERE GLOBALLY?
29. A comparative study of international Electoral systems reveals at least five (5) distinct systems, well of course with lots of variations in between 2021/03/16 19<br>
slide20. SINGLE-MEMBER CONSTITUENCY SYSTEM AND FIRST-PAST-THE- POST (FPTP) METHOD
4 Countries were studied
U.K
USA
CANADA
INDIA
The U.K system is what made both the National Party as well as the Conservative Party and the Labour Party to ascend to power despite winning a lesser percentage of votes cast. 2021/03/16 20<br>
slide21. The USA has the same system but with known variation like electoral college or the President standing for election alone separate from the party.
India, a former British Colony adopted the same system but realised it won’t suite their Caste system at all.
Hence India has reserved some constituencies specifically to people belonging to the scheduled castes (SC) and scheduled Tris CST 2021/03/16 21<br>
slide22. MIXED-ELECTORAL SYSTEM (MIXED-MEMBER PROPORTIONAL REPRESENTATION (MMP)
A number of countries utilize this system. Prominent amongst them is Germany which adopted after the second world war.
This system combines party list proportional representation with single member constituency site system.
In these cases, seats allocated under the party list component of the system are used to compensate for any distortions in the seats-to-votes ratio produced at the electoral district (constituency) level.
A number of countries in recent years have adopted this system
Hungary
Italy
New Zealand
Venezuela
Bolivia 2021/03/16 22<br>
slide23. CLOSED-LIST SYSTEM (PARTY-LIST SYSTEM)
South Africa
Spain uses a variation of this, except in its senate.
PREFERENTIAL LIST SYSTEM AND PR SINGLE TRANSFERABLE MIT (STM): A VARIENT OF PROPORTIONAL REPRESENTATION
The Netherlands
Denmark
Finland 2021/03/16 23<br>
slide24. THE AFRICAN CONTINENT
BOTSWANA
First-past-the-Posts (FPTP)
Winner takes all majoritation electoral system – a legacy of the British Colonial system.
This is a single-member constituency system. 2021/03/16 24<br>
slide25. ZIMBABWE
Presidential elections separate from parliamentary elections.
FPTP system with a 10 multi-member constituencies corresponding to the 10 administrative provinces divided into 210 districts.
KENYA
Independent candidates who have not been a member of any political party for at least three (3) months immediately before the date of the election.
Independent candidates running for the position of member of the National Assembly should be supported by at least one thousand (1000) registered voters in the constituency while those running for senate seat must be supported by at least two thousand (2000) registered voters in the country. 2021/03/16 25<br>
slide26. Political parties nominate their candidates at least 45 days before a general election and are prohibited from changing candidates once the nomination is accepted by Independence Electoral and Boundaries Commission.
In a 290 Member Parliament 12 members of the National Assembly are nominated by Parliamentary Political parties to represent youth, persons with disabilities and workers. Here party lists are used in a proportional representation 2021/03/16 26<br>
slide27. In a 47 member senate, 16 women members are nominated by means of political party lists in a proportional representation.
NIGERIA
System of political party in a constituency system
No independents.
SENEGAL
Mixed system of winner-takes-all coupled with a proportional representation.
Independents allowed. 2021/03/16 27<br>
slide28. Back to South Africa
The Constitutional Court ruling of amending Electoral Act, 1998 (Act No. 73 of 1998) leads to consequential amendment of several pieces of legislation:
Public Funding of Represented Political Parties Act, 1997 (Act No. 103 of 1997)
The Electoral Commission Act of 1996
Local Government Municipal Demarcation Act 27 of 1998
The Political Party Funding Act 6 of 2018 2021/03/16 28<br>
slide29. IN IMPLEMENTING THE CONSTITUTIONAL COURT RULING, WILL THERE BE ANY CONSEQUENTIAL AMENDMENT TO THE CONSTITUTION?
We notice that many submissions or proposals contend that there will be no consequential amendment to the Constitution.
One of the such submissions are from the The Inclusive Society Initiative (ISI) 2021/03/16 29<br>
slide30. Interestingly, the ISI panel acknowledges that Sections 47(3)(c), 57(2), 70(2), 116(2), 178(1)(h), 106(3)(c), 193(5) and 236 of the Constitution are about Political parties, participation in Parliament, Judicial Services Commission and Chapter 9 Institutions. 2021/03/16 30<br>
slide31. The workshop will have to look into all these issues.
43. As announced earlier this month, the Department of Home Affairs has appointed a Ministerial Task Team of experts in the various fields to study all these issues and advise accordingly. The Task Team consists of: 2021/03/16 31<br>
slide32. Mahomed Valli Moosa: as the Chair
Pansy Tlakula: Former IEC Chief Electoral Officer and Commission Chair
Professor Daryl Glaser: Head of Political Science at Wits
Dr Sithembile Mbele: Senior Lecturer of Political Science at the University of Pretoria
Advocate Vincent Maleka: Senior Counsel
Mike Sutcliffe: Former Municipal Manager of eThekwini Municipality and Chair of Demarcation Board
Norman Du Plessis: Former Deputy Electoral Officer
Dr Nomsa Masuku: A member of the Electoral Commission but coming on an individual capacity
Two more members may be added 2021/03/16 32<br>
slide33. What will this Committee be doing?
The leader of this Committee is going to speak to you when I sit down, and he will explain that. But amongst other things, the Committee is going to try and help us navigate through this process.
Perhaps help to avoid what Eckstein said in the middle of the last century, and I quote: “It is the easiest thing in the world to get inextricably tangled among the complexities of electoral systems”. 2021/03/16 33<br>
slide34. END 2021/03/16 34<br>