Decreasing Voter Participation in South Africa and the Call for Electoral Reform through Allowing Independent Candidates

• Author: Bradley V. Slade,Charlene Kreuser
• DOI: 10.25159/2522-6800/8085
• Published date: 01 November 2021
• Date: 01 November 2021
• Pages: 1-22

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/8085

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

Volume 36 | Number 1 | 2021 | #8085 | 22 pages

© Unisa Press 2021

Decreasing Voter Participation in South Africa and

the Call for Electoral Reform through Allowing

Independent Candidates

Charlene Kreuser

https://orcid.org/0000-0001-9175-1384

Stellenbosch University

charlene@lrc.org.za

Bradley Slade

https://orcid.org/0000-0001-8855-1269

Stellenbosch University

bvslade@sun.ac.za

Abstract

Sections 1 and 19 of the Constitution of the Republic of South Africa provides

citizens the right to vote in free, fair and regular elections. The Electoral Act

sets out the framework for and regulates national and provincial elections.

Although South African elections are generally considered to be free and fair,

voter registration and voter turnout has decreased since the first democratic

election of 1994. This article considers the trends in voter participation in South

Africa at a national level. It considers the various calls for electoral reform in

light of the claim brought by New Nation Movement NPC to permit independent

candidates to contest elections at national and provincial level.

In New Nation Movement NPC v President of the Republic of South Africa, the

Constitutional Court declared relevant sections of the South African Electoral

Act invalid as it does not allow for individual candidates in the national and

provincial elections and therefore violated section 19(3)(b), read with section

18 of the Constitution. This decision is similar to a 2011 decision of the African

Court on Human and Peoples’ Rights, where it was held that requiring

candidates to form part of political parties to run for office is an unjustifiable

restriction of citizen’s political participation in terms of the African Charter.

This article considers the reasoning of the Constitutional Court in New Nation

Movement in light of the jurisprudence of the African Court, and ultimately, to

what extent an amendment to the Electoral Act in the terms prescribed by the

Constitutional Court can address the decreasing participation rate in electoral

processes.

Keywords: South Africa; elections; democracy; political participation

Kreuser and Slade

2

Introduction

One of the values upon which the Republic of South Africa is founded is ‘universal

adult suffrage, a national common voters’ roll, regular elections and a multi-party

system of democratic government.’ The purpose of these values is to ensure

‘accountability, responsiveness and openness’.

1

As a result of the exclusion of the black

vote during the colonial and apartheid era, the importance of universal suffrage cannot

be overemphasised. The importance of this underlying value should be seen in the

historical context of South Africa. At the first democratic elections in 1994, most of the

voting-age population (VAP) voted. However, there has been a dramatic decrease in

voter turnout since 1994. There have also been calls for reform of the current electoral

system, specifically for allowing independent candidates to contest national and

provincial elections.

This article considers the importance of the right to vote in light of this historical context

before turning to a discussion on the electoral system at national and provincial level as

regulated by the Constitution of the Republic of South Africa, 1996 (Constitution) and

relevant legislation. The article proceeds to consider voting patterns and voter turnout

to contextualise the various calls for electoral reform. Central to the discussion is the

interpretation of section 19(3)(b) of the Constitution, which provides every adult citizen

with the right to ‘stand for public office’ . In the recent Constitutional Court judgment

of New Nation Movement NPC and Others v President of the Republic of South Africa

and Others (NNM)

2

, it was found that certain provisions in the Electoral Act 73 of 1998

is invalid in that it does not allow independent candidates to contest national elections.

In light hereof, this article questions whether the reform of the law to allow independent

candidates to stand for and be elected to office has the ability to address decreasing voter

participation.

Importance of the Right to Vote: Historical Overview

The Union of South Africa, which joined together the four colonies in the territory of

what is now South Africa, was underpinned by the notion of ‘the territorial segregation

of black and white as a mandatory feature of public life.’

3

Since the Union Constitution

of 1909 mostly dealt with the powers of the Union Parliament, to ‘be essentially

representative of white male adults’,

4

the Union Parliament set out to remove the limited

voting rights of the native population.

1

Section 1(d) of the Constitution of the Republic of South Africa, 1996.

2

[2020] ZACC 11.

3

Stu Woolman and Jonathan Swanepoel, Constitutional Law of South Africa vol 1 (2nd edn, Juta RS 6

2014) 2-14.

4

ibid 2-14.