The constitutional court ruling in the New Nation Movement v the President of the Republic of South and others, ordered that the Electoral Act of 73 of 1998 is unconstitutional, in so far as it requires adult citizens, may be elected to the National Assembly (NA) and Provincial Legislatures only through membership of a political party.
In making its ruling, the majority of justices held that the outcome of its decision would be an exercise of the interpretation of the various sections. The court noted that it is bound by its earlier rulings where it must follow interpretations that do not lead to conflicts but rather one that harmonises sections in the constitution.
The court looked at sections 19(1) and 19(3)(b) of the Electoral Act and section 18 of the constitution. Section 19(1) reads:
“(1) Every citizen is free to make political choices, which includes the right—
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.
And section 19(3)(b) reads as follows “Every adult citizen has the right to stand for public office and, if elected, to hold office.”
The court stated that it could not find anything in the Electoral Act that prevented adult citizens from contesting elections. The court then looks at whether section 18, the right to assemble, includes an individual’s choice not to assemble or associate. If it does, the right not to associate is protected by the Constitution.
In interpreting section 18, the court looked at international law and how it interpreted the right to assemble. Amongst the international law considered, Article 10 of the African Charter on Human and Peoples Rights, provides that everyone has the right to freedom of association, however, no-one may be compelled to associate.
A ruling from the African court stipulated that the “freedom of association is negated if an individual is forced to associate with others. Freedom of association is also negated if other people are forced to join up with the individual. In other words, freedom of association implies freedom to associate and freedom not to associate”.
Also, if one is coerced to associate, then it conflicts with the right to dignity. Understandably, not everyone wants to join a political party. Being coerced to form or join a political party is an issue that may fundamentally touch one’s inner core. A matter that goes to one’s conscience. An individual may want to serve the interest of a community without being constrained by party politics. The issue around voting in the National Assembly along party lines is real and daunting on individual members that may have wanted to vote differently.
The court reminds itself of the decision it made regarding the vote of no confidence in the President, which ruled that Members of the NA, exercise their vote freely and effectively, in accordance with the conscience of each, without undue influence, intimidation or fear of disapproval by others. The fact that the court had to make that ruling, was evidence of how inter-party politics can constrain members.
The court concluded that the right to assemble includes the right not to assemble. A restraint on any of these choices is a negation of the right. Section 19(3)(b) of the Electoral Act, therefore cannot be read to mean that one must stand for and hold political office “through a political party” as this would potentially be an infringement of the section 18.
Respondents argued that constitution itself makes provision for proportional representation through a political party and not independents. The various sections dealing with proportional representation was referenced.
The court noted that the constitution is one composite whole and therefore cannot be contradictory. However, where there may be tensions between provisions, everything possible must be done to harmonise them.
The court pointed out that, actually, the sections that make reference to proportional representation referred to the Schedule Two of the Interim Constitution dealing with transitional arrangements. These sections were meant to apply to the first elections only and not indefinitely. The purpose of this, at the time, was to ensure that there would be a multi-party system and not a one-party state.
The court ruled that the Electoral Act, is unconstitutional to the extent that it makes it impossible for independent candidates to stand for political office without being members of political parties.
However, this declaration of invalidity is suspended for a period of 24 months. This means that the Electoral Act will stand until an amended version is signed into law.
Judge Froneman did not agree with the majority of his peers. He believed that the law only made provision for political parties to contest elections and not individuals. He further emphasised that South Africa’s democracy is both representative and participatory and there is no need for individuals to contest elections as the constitution makes provision for citizens to participate through petitions, picketing, referendums and other forms of participation.
May 2019 elections recorded the lowest turnout of voters. Allowing independent candidates to hold seats in the NA and legislatures may rejuvenate voter apathy. It is step towards deepening democracy and bringing people closer to the governing processes. It is a win for individual candidates who wanted to become political office bearers, however, did not have the appetite for party politics. It is a win for voters wanting more choice. It may also make inter-party politics and democracy more robust and accountable. Communities can decide whether they want to have someone represent them.
Something to bear in mind and to be discussed during the coming public hearings, is that, although the IEC provides funding to political parties, it cost money to register a political party. Will this exclude the poor and the ordinary citizens? What does this mean and say about South Africa’s democracy?
Parliament has 24 months within which to decide and legislate what the new electoral system will look like. The legislative mandate lies with it, however, the court made it clear that whatever the framework it decides on, it must take into account the rights in the constitution. The bill is going to be complex and may follow a section 76 procedure, meaning that public hearings will be conducted extensively from the executive, through to the National Assembly, provincial legislatures and selected municipalities.
Participating in these forums can no longer be for a select few with resources. The people should start talking now, preparing, organising, make submissions, follow developments, enlist the help of local councillors and take ownership of this process because it is their country and their government.