By Seen Tsanzo Kampondeni
There is some confusion about what happened at Parliament today, so allow me to explain, if I may.
First, Parliament was NOT voting on whether the winner of the fresh presidential election should secure 50% Plus 1 of the votes. That issue was already settled by the Constitutional Court, which ruled that Section 80(2) of the Constitution already requires the winner of a presidential election to secure 50% Plus 1 of the votes.
So, the percentage of votes to win the presidency during the fresh elections is still 50% Plus 1, because the Constitution already requires this.
What the Constitutional Court ordered Parliament to settle were three things:
1. Make a law that says what happens when no presidential candidate wins 50% Plus 1 on the first vote, to ensure that the law says how the required 50% Plus 1 would be achieved if noone got it on the first vote. Today Parliament voted on a bill to address this, adding a provision in the Parliamentary and Presidential Elections Act to say that there would be a run off between the top two candidates if noone won a majority the first time. That bill has passed!
2. Make a law that prescribes a better way to hire and fire MEC Commissioners. Today, Parliament voted on a bill to amend the Electoral Commission Act so that MEC Commissioners should no longer be appointed and fired by the President, but by Parliament’s Public Appointments Committee.
This bill also provides that the fresh election should be run by the Clerk of Parliament in an acting capacity rather than the discredited Chief Elections Officer. That bill has also passed.
3. Make a law that allows the extension of the current parliamentary term to six years so that after a fresh presidential election is held in May 2020, there will still be alignment between the presidential, parliamentary, and council elections in May 2025.
Today, Parliament voted on a bill to amend Section 80 of the Constitution to make this happen, which requires a two thirds majority of 128 votes. The bill was defeated.
One complication from the defeated bill is that the proposed amendment to Section 80 of the Constitution also included a clause requiring that a run off be held within 30 days after the first round fails to produce a majority winner.
It is strange that this bill included this provision, considering that another bill providing for a run off had already passed.
It has created the awkward scenario in which a run off provision was passed in one bill and defeated in another bill. In fact, when you read the Constitutional amendment bill, you cannot help but note that it was a rather convoluted amendment in general, conflating universal matters with circumstantial ones.
The real kicker and headache is that there are parts of the two bills that passed that are dependent on the provisions of the bill that was defeated, so there is a question about whether the defeated bill renders the passed bills null and void.
So on balance, the bill may have been defeated not so much because of the provision on alignment of elections, but because of other provisions that seem to me to be more suited for a place in an Act of Parliament than the Constitution of a country.
It may also have been defeated in the hopes that doing so defeats the passed bills. If you find this part confusing, it’s because it is.
In conclusion, three bills went to Parliament on Thursday, February 21, 2020, and two of them were passed, one was defeated.
We now have the task of figuring out the implications of the defeated bill on the bills that passed and on the fresh elections, which must still happen within the next 133 days as ordered and must still be won by 50% Plus 1, failing which must be settled by a run off….may be.