Referendum legislation reaches committee stage

The Constitutional power of a Premier to call a provincial referendum will now be affirmed in an amendment to the Electoral Commission Act of 1996. The Referendum Party has applied to make a committee submission.

Submitted on June 21, 2023 by DA MP Annelie Lotriet, this bill seeks to amend the Electoral Commission Act of 1996 to address a significant legislative gap regarding the power to call referendums. This week, she presented the amendment Bill to the Portfolio Committee for Home Affairs.

This follows a presentation from two years prior, explained that the current Act only authorizes the President to declare a national referendum. It fails to provide a mechanism for Provincial Premiers to do the same, despite Section 127(2)(f) of the Constitution explicitly listing the calling of a referendum as a Premier’s power. Because the Constitution requires this power to be exercised in accordance with national legislation that does not currently exist, the existing legal framework is non-compliant.

To rectify this, the bill introduces specific amendments to align national legislation with the Constitution. Clause 1 inserts definitions for “voter” and “voting district” consistent with the Electoral Act of 1998, expressly differentiating between national and provincial referendums while ensuring that both are inferred wherever the Act refers to an election. Clause 2 limits the scope of national referendums to all nine provinces and provincial referendums to the voting districts of the relevant province. Crucially, this clause empowers a Premier to declare a provincial referendum—mirroring the President’s national authority—and permits simultaneous referenda on different matters.

The bill also updates the regulatory framework. Clause 3 amends Section 23 of the current Act to incorporate operational regulations previously held within the Referendums Act of 1983. Consequently, Clause 4 repeals the Referendums Act of 1983 entirely, as it becomes superfluous.

In a letter to the Committee, Phil Craig of the Cape Independence Advocacy Group has emphasised the ugency of this legislation, but also wishes to make further amendments before the Bill goes up for a vote. He has argued that the Bill is necessary to enable the Western Cape Premier to exercise his constitutional right to call a referendum. The Premier has stated he cannot do so until this legislation is in place. Furthermore, the Constitutional Court previously declined to hear a related case specifically because this Bill was pending before Parliament to correct the legislative gap.

The CIAG argues the current draft is unconstitutional because it only permits “national” or “provincial” referendums, but they contend that regions not bound by these distinctions should also be possible – the Constitution, as well as several international treaties guarantee the right to self-determination. Cultural or linguistic communities often do not align perfectly with provincial or national borders. The CIAG has thus proposed that the Bill should be amended to allow the President or Premier to call referendums in specific parts of the country/province or for segments of the population, rather than just the whole entity.

The Cape, for example, is culturally, linguistically and ethnically bound, not by the three Cape provinces, but by the region inhabited by legacy Cape population groups marked generally by the prevalence of Afrikaans as a local majority language, from the sea to the Orange and Sundays rivers. Likewise, the Zulu people extend beyond KwaZulu Natal, the Sotho beyond the Free State, and the Tswana beyond the boundaries of North-West.

Additionally, as the creation of Collins Chabane municiaplity in Limpopo showed, the divisions between sub-provincial groups has political importance too – the local Tsonga were given their own municipality, separate from the Venda who dominate the two neighbouring municipalities from which it was carved in 2016 – the state already recognises ethnic self-determination as a principle of governance.

The CIAG also argues that the power to call a referendum should not be at the sole and arbitrary discretion of the President or Premier. To truly honor self-determination, there ought to be a mechanism (similar to laws in New Zealand and Italy) that allows the populace to compel the state to call a referendum once reasonable qualifying criteria are met.

Should these criteria be met, the country would soon be on an accelerated path to self-determination for all its peoples.