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Electoral Shake Up: South African Constitutional Court Opens Door for Non-Partisan Candidates

June 17, 2020, Covington Alert

In a landmark decision handed down by Madlanga J of the Constitutional Court (“CC”) in New Nation Movement NPC & Others v. President of Republic of South Africa & Others on June 11, 2020, the CC declared the Electoral Act, 1998 (Act No. 73 of 1998 (the “Act”), unconstitutional to the extent that it requires adult South African citizens to be elected to the National Assembly or Provincial Legislature only through their membership to a political party.

An argument advanced by the four applicants, New Nation Movement NPC, Ms Chantal Dawn Revell, GRO and Indigenous First Nation Advocacy SA (hereinafter simply, the “Applicants”) was that the Act infringes their right to freedom of association protected by section 18 of the Constitution of the Republic of South Africa, 1996 (the “Constitution”). The participating respondents, namely the Minister of Home Affairs, the Electoral Commission of South Africa (the “IEC”) and the Speaker of the National Assembly (collectively, the “Respondents”), contended that section 19(3)(b) is neutral; it does not require that membership of the National Assembly and Provincial Legislatures must include independents. On the contrary, they argued that other provisions of the Constitution, such as sections 1(d), 46(1)(a), 105(1)(a), 57(2), 178(1)(h) and 236, point away from the interpretation contended for by the Applicants.

In the judgment penned by Madlanga J (the “First Judgment”), the CC held that the Act is unconstitutional to the extent that it requires adult citizens to be elected to the National Assembly and Provincial Legislatures only through their membership of political parties. In reaching this conclusion, the First Judgment held that, despite having been pleaded as discrete, the freedom of association challenge is inextricably linked to the right protected by section 19(3)(b). “That is so because the applicants’ plea is not only about adult citizens not being coerced to be members of political parties. It is about not being so coerced so that they may exercise the section 19(3)(b) right. And they can exercise that right in this fashion only if it is guaranteed by section 19(3)(b).” (See paragraph 14 of the First Judgment). Accordingly, in order to avoid pitting the two rights against one another, the First Judgment preferred an interpretation of section 19(3)(b) that promotes freedom of association.

The Applicants argued that the electoral system constitutes an unreasonable and unjustifiable limitation of the right of citizens who are not affiliated to political parties to stand for public office in the National Assembly or the Provincial Legislature.  It was argued that a conflict exists with section 19(3)(b) of the Constitution which guarantees that “every adult citizen has the right to stand for public office, and if elected, to hold office.” As a result, persons with no affiliation to a political party are not barred by the Constitution to stand for public office. Thus, the requirement that South African citizens must be a member of a political party to stand for public office is unconstitutional because such a limitation of political rights goes beyond the scope of a legitimate limitation in terms of section 36 of the Constitution (the so-called “limitation clause”).

In the First Judgment, the CC held that section 19(1) of the Constitution in fact affords every South African citizen the right to make political choices and that the list of political choices in that section is not exhaustive.  It was held that a conscious choice not to form or join a political party was as much a political choice as is the choice to form or join a political party, as set out in the inexhaustive list of political choices in section 19(1).  The freedom not to associate at all is also a fundamental right, and “once an adult citizen is forced to exercise the section 19(3)(b) right to stand for public office through a political party, that diverts him or her of the very choice guaranteed to him not to join or form a political party, and that cannot be.”

In relation to the section 1(d) founding value of “a multi-party system of democratic government,” the First Judgment held this means nothing more than that South Africa must never be a one-party state; it says nothing about exclusive party proportional representation. The IEC also placed reliance on sections 46(1)(a) and 105(1)(a) of the Constitution.  These sections require that the electoral system be prescribed by national legislation. The IEC argued that if Parliament could not even prescribe an exclusive party proportional representation system, it would be left with very little under the power conferred on it by these sections. The First Judgment found that sections 46(1)(a) and 105(1)(a) do not give Parliament carte blanche and that the electoral system it prescribes must be constitutionally compliant.  Rather, the question is whether what it has prescribed is constitutionally complaint.  According to the First judgment, sections 46(1)(a) and 105(1)(a)  do not indicate sufficiently that the Constitution requires an exclusive party proportional representation system.

In accordance with the principle of objective invalidity, a declaration of invalidity that is not coupled with a limit to its retrospective effect would invalidate all elections that followed the first election under the Constitution. For that not to happen, the declaration of invalidity must take effect from the date of the judgment (June 11, 2020). The CC also suspended the declaration of invalidity for a period of 24 months, to afford Parliament an opportunity to remedy the defect giving rise to the unconstitutionality.

In a second concurring judgment penned by Jafta J (the “Second Judgment”) two principles were highlighted which guide the interpretation of section 19 of the Constitution. The first principle is that section 19 must be read in its historical context, in which Africans were denied the right to vote and the right to be voted into public office. The other principle is that the language employed in section 19 must be accorded a generous and purposive meaning to give every citizen the fullest protection afforded by the section.

The Second Judgment held that section 19(3) draws a dichotomy between citizens by conferring rights upon a specific class of citizens. The bearers of rights enshrined in this section are adult persons who are citizens. It was reasoned that to safeguard the free exercise of the right, the Constitution demands that the actual voting must be conducted in secret. This is a singular condition that section 19(3) imposes for the exercise of the right to vote. The condition reveals the inter-relatedness between the right to vote and the right to free, fair and regular elections guaranteed by section 19(2). Similar to the reasoning employed by the First Judgment, the Second Judgment concluded that the deficiency in the Act, to the extent that it fails to enable adult South Africans to stand for public office as individuals, is inconsistent with the Constitution.

Froneman J provided a dissenting judgment (the “Third Judgment”) in which he disagreed with the interpretation of section 19(3)(b) in the First and Second Judgments for not having proper regard to the constitutionally required electoral framework within which the right “to stand for and, if elected, to hold office” must be exercised. Foreman J also held that the Constitution prescribes something other than political parties in its fundamental mutli-party system of democratic government. The right in section 19(3)(b) does not have an uncontested pre-given meaning that can be determined without having regard to the constitutional context.

The Third Judgment disagreed with the reasoning that, because there may be no obstacle in the Constitution to independent candidates, we should therefore interpret section 19(3)(b) as securing such a right. This would be an illogical leap that cannot be sustained because it conflates electoral preferences with constitutional rights. The entrenchment of proportional representation, and its achievement through the vehicle of political parties, flows from the prioritisation of equality in political voice over the accountability that might be better secured through a constituency-based system.

Conclusion

In response to the CC’s judgment, the IEC noted its readiness to assist Parliament with a review of the defect by expressing that “the whole electoral system will have to come under review given this decision.” In addition, “we have to invest in new systems because our internal systems have always been predicated on delivering an electoral system based on a party list.”

If you have any questions concerning the material discussed in this client alert, please contact the following members of our Africa practice.

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