The Organisation Undoing Tax Abuse (OUTA) has applied to the Constitutional Court for permission to join a case calling for electoral reform as an amicus curiae (a friend of the court). The matter is due in the Concourt on Thursday 15 August.
The case (CCT110/19) is being brought by the New Nation Movement NPC and others against the President and others. It revolves around whether the Electoral Act is unconstitutional because it prevents independent candidates from standing in a national or provincial election.
OUTA is not associated with and holds no brief for the original applicants, but rather regards this case as a matter worthy of intervention due to the public importance of electoral reform for holding politicians to account. OUTA wants the law to be amended to allow individuals to stand as independent candidates in national and provincial elections, rather than the current system which allows only party candidates.
OUTA is a non-partisan non-profit organisation and Dr Heinrich Volmink, OUTA executive director for the national division, says this case is about promoting accountability.
“We believe in the right of the citizens to hold their public representatives to account,” says Volmink.
“We are passionate about democracy. We are passionate about the Constitution and we are passionate about accountability. We see this as furthering all of those very critical elements.”
Advocate Stefanie Fick, OUTA’s Chief Legal Officer, says the current system emphasises party loyalty.
MPs and MPLs “are bearers of the rights to freedom of association, conscience, expression and political choice,” says Fick in her affidavit supporting OUTA’s application. “They exercise these rights – and, in particular, the right to make political choices – in the discharge of their parliamentary functions, both in their own right but also on behalf of the electorate that they represent.”
Fick says the current system, based on party representation, results in MPs and MPLs who are “primarily representative of, and beholden to, the political party to which they belong”. This places party loyalty above election promises.
Independent candidates are more answerable to their voters as they face a real likelihood of being voted out if they fail to honour election promises. A system which allows for independent candidates will help mitigate the threats to accountability of the party list system, says Fick.
OUTA is being represented pro bono by advocates Isabel Goodman and Emma Webber, instructed by Laura Macfarlane of Norton Rose Fulbright.
OUTA’s argument is based primarily on sections of the Constitution.
Sections 18 and 19 relate to the right to freedom of association and the right to political choices, including the right to stand for public office. This includes the “right to dissociate from political parties”, says OUTA in the court papers. “An electoral system that forces citizens to join or form a political party in order to stand for office necessarily circumscribes the right to freedom of association.”
Sections 46 and 105 require that Parliament prescribes legislation for an electoral system. OUTA argues that these sections do not give Parliament an unconstrained choice regarding electoral systems. The exclusion of independent candidates “is inconsistent with citizens’ unqualified rights to stand for political office”.
The principles of accountability and transparency are enshrined in the Constitution, in section 195, so legislation on elections should reflect this. “An electoral system that is based exclusively on closed political party lists and excludes independent candidates does not promote the principles of accountability and transparency. It actively undermines them,” says OUTA. The Constitution does not give Parliament the power to choose an electoral system that excludes independent candidates.
In support of this case, OUTA intends to submit two key reports to the Concourt: the Report of the Electoral Task Team of January 2003 (compiled by Dr Frederick van Zyl Slabbert and others) and the High Level Panel Report on the Assessment of Key Legislation and the Acceleration of Fundamental Change of November 2017 (compiled by former President Kgalema Motlanthe and others).