Parliament’s portfolio committee on justice and constitutional development takes up a strange and yet crucial question this month on which additional categories of candidate disqualification should apply.
This follows DA MP Glynnis Breytenbach’s proposed amendment of three sections of the constitution to prohibit any former judge or Chapter 9 head removed by the president on grounds of gross misconduct or misconduct from becoming a member of parliament, provincial legislature and local council.
If parliament adopts the proposal, it will do more than merely temporarily keep serious violators of the law out of the legislative bodies but also maintain the integrity of SA’s democratic regime by ensuring that elected representatives possess the requisite respect for the rule of law.
Lessons learnt since the dawn of our democracy have made us wiser because we now know that the constitution recognises that the electorate’s screening ability for undesirable persons is also limited by our significantly closed-list proportional representation system, where we largely cast votes for political parties and their political elite craft candidate lists, and less directly for individuals.
The constitution and the law, therefore, must constantly limit the ability of anyone to foist unsuitable individuals on the citizenry.
The Electoral Act (Section 30(1) and Section 31E) has long provided for grounds for objecting to any unsuitable candidate, including in cases where a candidate did not sign the prescribed acceptance of nomination, did not sign a prescribed undertaking that they are bound by the code of conduct, and is not qualified in terms of the constitution to stand in the election.
This is in addition to constitutional provisions (Section 47 and Section 106) which disqualify candidature of anyone who has been declared to be of unsound mind by a court, an unrehabilitated insolvent, or was convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine.
This disqualification ends five years after completion of the sentence and does not extend to people who are yet to be sentenced or to those, while sentenced, who have yet to exhaust the appeal mechanisms available to them.
There is ample evidence that the courts and the electorate have vigilantly enforced disqualifications of candidates over the years.
In 2024, the Electoral Commission (IEC) received and successfully processed 82 objections in relation to candidates nominated by 21 political parties.
It noted that, despite many of the objections not meeting the prescribed submission format, it had, in keeping with its obligation to ensure free and fair elections, considered whether substantively the objections met the criteria in the constitution and the law.
The proposed constitutional amendment is a radical affirmation of the rule of law and pursues a legitimate aim of ensuring the proper functioning and maintenance of our democracy
In so doing, the IEC affirmed the enforcement of a candidate elimination process using existing procedural steps that are transparent and capable of responding fast enough.
These procedural steps have over the years set a positive tone for elected representatives when they begin their functions in legislative bodies and take an oath or solemn affirmation to “obey, respect and uphold the constitution and all other laws of the Republic”.
The proposed constitutional amendment is a radical affirmation of the rule of law and pursues a legitimate aim of ensuring the proper functioning and maintenance of our democracy.
Imposing additional disqualifications to assess every available candidate should encourage voters and candidates to consider every strategic nomination, every resource allocation and every campaign decision to preempt mistakes — working through the straightening lens of foresight and accountability and not the distorting mirror of hindsight, apathy and nostalgia.
No-one wants to be in an untenable position where, in October 2023, disgraced then public protector advocate Busisiwe Mkhwebane was sworn in as an MP for the EFF, just 39 days after the National Assembly she joined had voted to remove her for incompetence and misconduct.
And in June 2024, Dr John Hlophe became a member of the National Assembly, four months after the house voted for his removal from the bench after years of legal wrangling over his attempts to sway Constitutional Court judges to rule in favour of Jacob Zuma, who is now the leader of the MK Party.
Similarly, Mkhwebane served on the portfolio committee on justice and Correctional Services which oversaw the public protector, the office she was found to be incompetent to lead.
Mkhwebane has since left the EFF and now represents the MK Party in the Mpumalanga legislature.
These proposed amendments do not claim that the existing measures are defective. They do not allege inadequate warnings about known risks.
Their theory is that enhanced disqualification signifies that, in certain cases, eligibility for office should not be left to a simple majority decision by the electorate.
Instead, the constitution must expand the set minimum criteria that a prospective public representative must fulfil.
They allege that the constitutional framework must be unequivocal in protecting our political rights and democracy.
South Africans must embrace this claim.
Participation in the envisaged parliamentary public hearings must reflect our collective commitment to defend and deepen our democracy without resorting to divisive political arguments.
Traditional submissions in public participation processes to amend the constitution tend to demand a defect in the clause or its labelling.
This proposed amendment discards both approaches.
It converts ordinary lived experience of evaluating the quality of election candidates and public representatives into generally applicable disqualification provisions.
The stakes reach far beyond this constitutional reform process.
If the constitution blesses additional disqualifications for the pace of innovation, other electoral behaviours will feel the pull.
The result might be law-abiding or ethically upright public representatives. It will be more of both.
Political miracles depend on calculated risk-taking by retaining or replacing public representatives, not on risk-free candidate selection.
Every voter — and every citizen — deserves law-abiding and morally upright public representatives.
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