Where is the Electoral Reform Consultation Panel?

Minister of Home Affairs Aaron Motsoaledi is again blocking electoral reform, by missing a key deadline in the amended law.

The deadline in the Electoral Amendment Act for the establishment of the Electoral Reform Consultation Panel has technically passed.

As stipulated in the Act, Clause 23 requires that “Within four months after the commencement of the Electoral Amendment Act 2023, the minister must establish the Electoral Reform Consultation Panel”. The act was gazetted on 17 April 2023and took effect on 19 June 2023. Technically the panel should have been established by 19 October 2023 but, to give the minister some benefit of the doubt, civil society organisations and other observers were hoping that by at least the end of October there would be some progress or public announcement.

But alas, no announcements have been forthcoming. Although the Portfolio Committee on Home Affairs raised the issue of the missing panel with the minister in a meeting on 19 September (see here), the committee does not seem to be putting pressure on the minister to comply with the law.

This is a failure both by the minister to implement electoral reform and by Parliament to hold him to account for this failure.

According to the act, “the functions of the Panel are to independently investigate, consult on, report on and make recommendations in respect of potential reforms of the electoral system for the election of the National Assembly and the election of the provincial legislatures, in respect of the elections to be held after the 2024 elections”.

Some of the duties of the panel include:

• Prior to the 2024 elections, the panel must engage in research and consider the issues falling within its functions;
• After the 2024 elections, the panel must undertake a public participation process regarding the issues falling within its functions; and
• From the date of its establishment, the panel must submit a report to the minister every three months on its progress.

The date of the elections has not yet been announced, even informally, but due to the uncertainties facing the Electoral Commission (IEC), one would have hoped for some support by way of the panel’s establishment. After all, it will be the panel’s duty to ensure that meaningful electoral reform takes place, not the watered-down version envisioned for the 2024 elections. Together with this, the Constitutional Court’s judgment is still outstanding following the 29 August 2023 court hearing of two urgent applications challenging how independent candidates are dealt with by the Electoral Amendment Act. The cases were brought by the Independent Candidate Association NPC against the President and others (CCT144/23) and One Movement South Africa NPC against the President and others (CCT158/23). The case details are here. The outstanding judgment casts a further shadow of uncertainty over the elections.

The Electoral Reform Consultation Panel has been of interest for OUTA since the panel’s inclusion in the Electoral Amendment Bill following the National Council of Province’s additions in December 2022. On 26 January 2023, OUTA submitted its comments on the then Electoral Amendment Bill, raising its concerns regarding the panel. OUTA stated that the panel’s requirements and responsibilities are very vague, open to manipulation and could lead to timeline constraints if not managed effectively.

OUTA also submitted nominations for suitable candidates for the panel.

OUTA argued that waiting until the 2024 elections to commence with many of the tasks could potentially lead to delays in proper reform by the 2029 national and provincial elections. In addition, many of the panel’s duties seem to be a duplication of past extensive research and reports on different electoral systems.

The available electoral systems are known. Parliament has already been advised at length, and South Africa already had a Ministerial Advisory Committee operating in 2021. OUTA argued that if yet another panel were to be constituted, there would have to be much more meaningful public engagement. For this to happen, it should not be a mere talk shop convened by experts as a box-ticking exercise, but rather a process involving informed public discussion on electoral reform. For true public participation, the possible systems need to be put before the public, in order to allow informed public discussion of the different options. The panel must have the capacity to engage with the media, social media, and with communities, in a manner which enables citizens to be part of the process of electoral reform.

In addition to concerns about the duplication of the panel’s efforts, OUTA also emphasised that the panel must include civil society representation. The panel must ensure public participation takes place regularly and in an informed, inclusive and educational manner. The public’s interests must be at the forefront of all reform considerations. The timelines and due dates set must be made very clear, together with repercussions and/or penalties should the panel and/or the minister and/or the Portfolio Committee of Home Affairs fail in their duty to conduct oversight and enact the responsibility to see adequate electoral reform. It is unfortunate that the first opportunity presented by the ConCourt from June 2020 to June 2022 was not utilised to its full potential by the portfolio committee.

Parliament requested a number of extensions to the original ConCourt deadline of 21 June 2022 to amend the Electoral Act of 1997. This seems to have set the tone for deadlines to be missed, as is now the case with the panel’s establishment. This is another disappointment in the landscape of meaningful reform to our electoral system, and it will yet again be the citizens of South Africa that will suffer the consequences of inadequate reform.

We note that Minister Motsoaledi seems to be making a habit of ignoring the Concourt and legislation. We call on the minister to comply with the law and on the portfolio committee to hold the minister to account.