Equal rights: Tessa Dooms at the launch of the Defend Our Democracy Movement aimed at strengthening, renewing, protecting and enhancing SA’s constitutional democracy. Photo: Fani Mahuntsi/Gallo Images
Amendments to South Africa’s electoral laws contained in the Electoral Amendment Act, passed earlier this year, are meant to allow independent candidates to contest national and provincial elections for the first time next year.
But “onerous” provisions will make it more difficult for independents and the large number of new political parties planning to contest their first elections than parties which have contested previous elections.
A number of organisations — the Independent Candidates Association, One South Africa (OSA) and the Rivonia Circle — that joined the application as amicus curiae, have approached the constitutional court to have the amendment declared unconstitutional.
They have challenged the validity of the amendments on the grounds that the new threshold for entry imposed makes it impossible for new entrants or independents, and any future poll to be free and fair.
They want the changes to the Act scrapped, saying the Electoral Commission of South Africa (IEC) can use rules that allow independents to contest municipal elections to permit them to stand next year.
At present, a party can contest national elections after securing 1 000 signatures from members on its deed of foundation, and after paying a R5 000 registration fee.
To contest in each province, the party will need to pay a registration fee of R3 000 and secure the signatures of 500 voters.
However, the new provisions introduced in the Amendment Act increase it to 15% of the number of votes required for a seat in the national assembly or a provincial legislature.
This translates to around 14 000 votes, a far higher barrier to entry than that imposed on parties already in the national assembly and legislatures, and one which has been challenged in court this week.
The Act was gazetted into law by President Cyril Ramaphosa in April, triggering the court challenge by the organisation, which believed that the amendments were “onerous” and rigged the electoral system in favour of incumbent parties.
In their submission to the court, Rivonia Circle’s counsel said that the deposits already placed a barrier to admission on independent candidates and new parties as they did not receive funding from the state, unlike those already in parliament.
“Considered together with the deposit requirement and the lack of state funding, the new signature requirements unconstitutionally tip the scale towards excluding or deterring new entrants from participating in elections — creating an unreasonable and unjustifiable barrier to exercising the right to stand for office,” their counsel said.
New entrants would also have fewer resources for campaigning as they would have to use them to obtain “an excessively large number of signatures just to access the ballot”.
“Incumbent political parties do not face the same obstacle — all of their resources may be directed towards campaigning for election. This means that the electioneering playing field is not level as a result of the electoral laws in place,” the counsel added.
By undermining the ability of new parties to compete and by forcing large numbers of voters to declare their political allegiance, the amendments undermined the right to free and fair elections; the right to secret suffrage; the right to stand for office and the founding constitutional value of multiparty democracy, they contended.
They also argued that the new signature requirements infringed the right to free and fair elections as independent candidates and unrepresented political parties “do not have an equal opportunity to contest elections.”
“The amendments treat independent candidates and unrepresented political parties less favourably than represented political parties — placing an obstacle in the path of new entrants, with which represented political parties do not have to contend,” they said.
The right to stand for political office was also restricted by the new amendments. The principle of secret suffrage was also undermined, as new parties and independents were forced to collect the details of thousands of supporters and submit them to the IEC, which could expose them to intimidation by sitting parties.
“The more contested elections become, this exacerbates the risk that follows the high signature requirement which forces voters to raise their hands publicly before the votes are cast, including the fear of intimidation and harassment that may have a chilling effect on the supporters of such prospective parties and candidates,” they said.
In its submission, OSA said parliament had argued that the new restrictions were only needed now, despite the fact that there were currently 331 registered political parties in South Africa.
Neither the IEC nor the home affairs department had been able to quantify how many parties would participate next year, and how many of these would be “frivolous”.
“No governmental respondent has demonstrated any rational basis for why independent candidates must meet the same “contestation” criteria for (new) political parties, when these entrants into the electoral arena are self-evidently different from political parties,” they said.
The court has reserved judgment in the matter.