Nkosikhulule Nyembezi
Cape Town - Last week, South Africans were greeted by the news that deliberations on the Electoral Amendment Bill by Parliament’s Home Affairs Committee are almost complete.
The next stage will consider a reworked Bill, which includes all the finalised amendments. While we must commend that the Bill is progressively shaping up, questions linger concerning why most political parties continue to push for the proposed retention of the unconstitutional three-month cooling-off period.
The cooling-off clause will prevent a citizen from standing as an independent candidate if they have been a political party member within three months of the election they intend to contest.
Here is the reason, to prevent those excluded from the party list from competing against their former party.
In such cases of transparent manifestation of narrow party interests, we must constantly remind the lawmakers that there is no need for a cooling-off period or any unconstitutional restrictions on independent candidacy.
After all, election campaigns will afford the electorate with opportunities to demand answers from independent candidates on why they left their former party upon which to decide on whom to lend their electoral support. Citizens must continue to oppose the smuggling of unconstitutional political-party favouring rules.
Section 19 is the foundation of this legislative amendment and guarantees the right of citizens to stand for public office and, if elected, to hold office.
What is at stake in this process is the facilitation of citizens’ right to champion a political cause without using a political party as a vehicle and the levelling of the political field for independent candidates and political parties to contest elections alongside.
Any party’s candidate selection process integrally connects to the member’s right to candidacy.
The extent to which it implicates the right to candidacy depends on the viability of the ‘exit’ path, as determined by the more general openness and competitiveness of the political environment in which prospective independent candidates historically start as party members and move on to champion their cause independently.
This outlook supports the political theory of ‘exit’ and ‘voice’ as the two options for influencing change in a representative democracy.
I have previously applied the exit-voice paradigm in examining power dynamics within political parties. The ‘exit’ option involves notable resignations from a political party, resulting in a membership decline that may compel the association to rectify faults.
This scenario occurred during the formation of the UDM, COPE, EFF, NFP, ID, GOOD, and others.
The ‘voice’ option involves remaining in the party and seeking to effect change from within by airing members’ dissatisfaction.
It is happening with ANC factions labelled as RET, CR17, etc. The candidate seeking redress in the event of a party list dispute is effectively exercising the option of ‘voice’ by aiming to remain within the party and to resolve the dispute internally.
We have also seen this in action in the ANC, PAC, IFP, DA, and other parties ahead of several local government elections. Unhappy individuals confronted national structures, demanding the reinstatement of popularly nominated names to the official candidate lists after being removed by party deployment committees.
In instances where the disputes ended in court, as was the case with ANC’s Ramakatsa, the courts deferred to party autonomy as a voluntary association on issues of party candidate selection processes, given the presence of the alternative option of ‘exit’ to those who might feel marginalisation politically.
As the courts have noted, the right to candidacy does not contemplate that each candidate must possess an equal chance of winning. However, it considers fair competition on a level playing field that includes the right to disassociate from a political party as another way to exercise the freedom to make political choices.
The processing of the current Bill provides an opportunity for South Africans to appreciate that any dissatisfied party member generally possesses the theoretical option of ‘exit’. However, at least two circumstances may render exit a virtual nullity at different general election stages.
The first such instance can be when a political party attempts to force members to sign a clause in a nomination form to contractually forfeit their option of exit if they are unsuccessful in getting their name included in the final candidate list.
In that case, an aspiring party candidate would pay the price by relinquishing their right to resign and stand in competition either as an independent candidate or a candidate for another party.
However, to do so would be contrary to public policy, illegal and unenforceable. It would be contrary to the spirit of Section 19, which unreservedly guarantees the right to candidacy.
Allowing such a bargaining away of the right to candidacy would be incompatible with the object of an untrammelled democratic government.
The second can occur when a party member generally lacks an exit option because there is a short time gap between the finalisation of internal party selection and the IEC candidate list submission deadline for registering as an independent.
The electoral timetable deadlines must not disadvantage prospective independent candidates by only opening for them to enter the election contest after other parties have already selected their nominees.
That is why I argue that the parliamentarians’ duty to pass constitutionally compliant legislation involves including provisions encouraging parties to engage in transparent and timely selections, giving unsuccessful nominees ample opportunity to explore alternative options.
A theoretical exit option may mean little in practice if its actual exercise proves unduly onerous or confers a considerably less meaningful opportunity for political participation and deliberative expression, as the proposed cooling-off clause purports.
Rather than forcing political parties to accommodate all interests, the law must promote a competitive space open enough to allow a plurality of political parties and independent candidates to contest elections and represent citizens in legislative bodies.
It must provide for a consistent and coordinated approach to legal regulation and the design of the electoral system that emphasises the maintenance of competition between party and independent candidates rather than elevating internal party factions at the expense of our democracy.
Nyembezi is a policy analyst and human rights activist
Cape Times