There has been mixed reaction to the Constitutional Court (ConCourt)’s declaration of parts of the Electoral Act as unconstitutional, prompting sections of society to either celebrate the historic ruling or warn of its risks.
On Thursday, the ConCourt ruled that by not allowing independent candidates to contest the national and provincial elections, the Electoral Act put limits on their rights as enshrined in the Constitution.
The legal case initiated by little known organisations including the New Nation Movement, Gro and the Indigenous First Nation Advocacy, will go down in history as the catalyst of the next chapter of South Africa’s electoral and democratic systems.
The applicants argued in different courts for over a year that this infringes on individuals’ right to association by forcing people to join a political party if they want to be considered for public office.
The South African Human Rights Commission said it appreciated that the court sets out the separation of powers between the judicial and legislative powers in dealing with the issue.
The organisation was referring to the constitutional court’s decision to give the National Assembly two years to amend the defects in law with the order suspended until then.
Justice Mbuyiseli Madlanga delivered the judgment: “The one element of the right to freedom of association is about the feeling not to associate at all if that be the individual’s choice.”
While the Economic Freedom Fighters said, unfortunately, the governing African National Congress and Parliament have to be told by the courts to do the right thing, the Freedom Front Plus has called for caution saying a change to the current electoral system could benefit the ANC and allow it to gain even more seats in Parliament.
Parties on the 2002 electoral task team, which was commissioned by Cabinet to investigate the system came back with recommendations that there should be reforms, but this was never followed through.