Thread by @MichaelJAvery

(1/15) While we are all still engrossed in elections and democratic processes, now is a good time to bring your attention to an alarming affront to democratic process unfolding right here in South Africa via the Electoral Laws Amendment Bill, a thread:

(2/15) The Electoral Laws Amendment Bill 2020, which is at present before the National Assembly, deals with the procedure for conducting elections, which seems to me to be integral to a democracy. I'm not aware of the troubling section having received any media coverage so far.

(3/15) The Bill was introduced on 23 September, and as far as I am aware the closing date for public submissions was 31 October, which allowed only five weeks for public comment, on what is a complex Bill.

(4/15) Procedure for conducting elections is currently provided in Chap 4 of the Electoral Act, in particular s38. Having stood in line to vote you'll have an idea of what that entails – producing ID, getting thumbnail stained, marking a ballot paper, sealing of ballot boxes etc

(5/15) Clearly there're any number of procedures for conducting elections, in particular electronic systems, each of which will have its own strengths, but also its own capacity for abuse....

(6/15) It seems to me that a procedure to be adopted should be subjected to wide & critical examination to ensure it has the rigidity to avoid abuse.

(7/15) The current procedure, having been determined by legislation, would ordinarily require legislation to amend it, with its ordinary process for public comment, debate in parliamentary committee and the National Assembly, and so forth.

(8/15) However, the amending Bill seeks to introduce a provision that allows the Electoral Commission to alter the current procedure for conducting elections.

(9/15) The relevant section seeks to add the following to section 38: ‘(9) Despite anything to the contrary contained in this Act or any other law, the [Electoral] Commission may prescribe a different voting method.’’

(10/15) I see no reason why the procedure for conducting elections should be taken out of the hands of the citizenry, through the parliamentary process, & determined instead by 5 people (the voting members of the EC), with no public participation or scrutiny

(11/15) That is not to say I distrust the members of the Electoral Commission, BUT if we are to have a democracy, in my view it is the citizenry, and not five unaccountable people, who should determine a procedure integral to how that democracy is to function.

(12/15) Indeed, I have spoken to a Judge who views the proposed amendment as unconstitutional. S190(1) of the Constitution provides: "The electoral Commission must… manage elections of national and provincial and local legislative bodies in accordance with national legislation”

(13/15) The Judge does not see how elections can be said to be managed in accordance with national legislation if they are managed instead in accordance with a procedure chosen by the Electoral Commission.

(14/15) I am aware that the Helen Suzman Foundation has made submissions opposing the amendment. Its submissions can be found on its website.

(15/15) The crisp question is whether it is the citizenry who should determine how its elections are to be held, or whether that should be delegated to five people, with no public participation. We've seen how fraught elections become when real competition heats up.