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After undertaking a potholed two-year journey before being passed into law in mid-April, the Electoral Amendment Act of 2023 is already facing multiple stumbling blocks.

Today the Constitutional Court is hearing two urgent cases. One brought by the Independent Candidate Association South Africa (ICA) and another by One South Africa Movement (OSA).

Both cases are around the introduction of Independent Candidates.

ICA and OSA are concerned about the barriers to entry for independent candidates as well as the seats available for contestation. They have raised concerns about the disregarding of excess votes.

But beyond the court action, the Act is facing a very basic procedural stumbling block.

The Act imposed a four-month deadline on the Minister of Home Affairs to appoint an Electoral Reform Consultation Panel. Four months have passed without an announcement from the Minister who, technically, now finds himself at odds with the law.

The Deputy Minister of COGTA, on the other hand, hasn’t allowed issues of consultation to deter him from steaming ahead with the drafting of new electoral rules that effectively seek to disregard votes for parties that fail to attract at least 1% of votes cast.

His attempt to introduce a threshold would have seen more than 550,000 votes discarded were it applied to the 2019 election and is at odds with the Constitution.

The only beneficiaries of this nonsense will be the ANC and DA, both of which have shown steadily declining returns over the last few elections. If they can’t attract more votes, themselves, they can retain their positions by excluding the votes of others, they appear to be saying.

Meanwhile, there’s been a National Dialogue on Coalitions (where the Deputy Minister of COGTA paraded his draft Bill before engaging in any dialogue).

Electoral reform is critical to improving democratic systems and expanding democratic choices, including to allow for independent candidates to participate in elections.

It makes no sense to be expanding the menu of options available to voters, while at the same time contracting democratic participation by imposing thresholds. The two processes are contradictory, which is no surprise given the dual/parallel/duplicated mismanagement of electoral reform – and COGTA’s pre-emptive electoral system overview.

If COGTA wants to contribute to stabilising local government coalitions, there are cleverer options available than reducing space for democratic participation. They include giving the party obtaining the highest percentage of the vote the first option to form a coalition, allowing more time for coalitions to be negotiated after elections, and reducing the scope for frivolous no-confidence motions and endless musical chairs.

That some South African municipalities are unstable and in trouble is common cause. But the extent of this should not be exaggerated in order to create a problem for a pre-determined solution. There are 257 municipalities in South Africa and SALGA estimates that of the 82 municipalities governed by a coalition only 32 are regarded as unstable.

COGTA’s approach seems to conveniently lay the blame for coalition instability on the preponderance of new parties.

The facts apparent from data on the IEC’s website are that South African voters are increasingly seeking viable alternatives to the old parties.

The missing ingredient in most of our local government coalitions is integrity. This has to come from parties and politicians; it isn’t something you can legislate.

Issued by Brett Herron, GOOD: Secretary-General & Member of Parliament