From The Unconstitutional To The Constitutional – A Refined South African Electoral Model – By Daryl Swanepoel

“Accountability is strengthened when representatives are closer to the electorate. Knowing one’s representative and thereby having greater access to him/her, strengthens the voter/representative nexus.”

By Daryl Swanepoel; CEO at Inclusive Society Institute

The Constitutional Court, in June 2020, declared the current Electoral Act unconstitutional since it does not allow for independent candidates to stand for election to national and provincial legislatures. It gave Parliament two years to remedy the defect.

To this end, the Inclusive Society Institute designed a proposed new electoral system that would respond to the Court’s ruling, but which would also remedy shortcomings under the existing pure proportional model.

It needed to:

• accommodate independent candidates;
• reflect, in general, proportionality;
• require no, or minimal, amendments to the constitution;
• be simple for the Independent Electoral Commission (IEC) to implement and for voters to understand; and
• promote gender parity, demographic and geographic inclusiveness, and representativity and improved accountability to the voter.

In essence, the institute needed to decide between:

• A winner takes all, single-seat constituency approach;
• Simplistic proportional representation (PR); and
• A hybrid model that accommodated constituencies, with a compensatory proportional list allowing for overall proportionality to be established

The single-seat constituency approach was rejected as it would not make it possible for the outcome to reflect proportionality. It would also not accommodate sufficient diversity.

The simplistic PR model would, in turn, be impractical. Imagine the length of a ballot paper should, say 100 independent candidates, wish to stand nationally in addition to the 48 existing political parties. It would also not advance geographic representation and will do little to improve representativity and accountability to the voters.

Thus, the model proposed is a 400-seat National Assembly of which 300 are allocated to multi-member constituencies (MMCs) each comprised of three to seven members. MMCs will be supplemented by a proportional list of 100 seats, which will be used to ensure overall proportionality in terms of the total number of votes cast for parties.

Structure

There will be two components to the establishment of the legislature. The first would be representatives elected via 66 MMCs. The second component will comprise representatives elected via the compensatory PR list.

It’s necessary to have at least three members per MMC to promote diversity within each MMC. But too large a number would be counterproductive in terms of promoting geographic representativity, or for bringing representatives closer to the electorate. Accountability is strengthened when representatives are closer to the electorate. Knowing one’s representative and thereby having greater access to him/her, strengthens the voter/representative nexus.  Thus, the maximum number of seats per MMC, is suggested as seven.

MMCs will be demarcated along current district and metropolitan municipal lines. Where the number of voters within a district is too few to warrant at least three representatives, two or more districts can be added together. Where the number of voters within a metropolitan council are too many, MMCs can be allocated along sub-council or metropolitan regional lines.

Each vote cast should carry equal weight. Therefore, in determining the borders of the MMCs, the total number of registered voters will be divided by 300 (the number of MMC seats), which results in a quota per seat.

Ballot papers, candidates and seat allocation

There will be one ballot paper in each MMC, comprising the names of the parties, followed by the names of the independent candidates. This is a departure from previously proposed hybrid models, which have suggested two ballot papers – one for the MMC candidates and one for the PR list. In this model the combined number of votes cast for party candidates, across all MMCs, determine its proportional share of the 400 seats in Parliament.

The voter will cast a single vote for either the party or the independent candidate. Seats in the MMC will be allocated proportionally, based on the number of votes received for each party or independent candidate.   Parties will be permitted to nominate a number of candidates equal to the quota size of each MMC plus one. Prior to the election the parties and the IEC will publicize the names of all candidates so that the electorate will know the incumbents prior to exercising their votes.

Should an independent candidate receive enough votes to be elected, he or she will qualify. Party candidates are allocated in order of their appearance on the list for the party in the particular MMC.

Gender parity is promoted by requiring parties to alternate their candidates based on gender, that is man followed by woman, or vice versa, on the ballot paper. This will, however, be difficult to engineer amongst independent candidates, since they represents only themselves.

If independent candidates obtain more votes than required for election, the surplus votes are discarded, in that a single individual cannot be more than a single individual.  Thus, only parties will compete for seats on the compensatory PR lists. As already alluded to, the aggregate number of votes received by a party will determine its proportional share of the 400 parliamentary seats. This implies that parties receive an additional proportion of the excess votes forfeited by the independents. Parties could, therefore, be marginally advantaged. This is warranted, in that absolute proportionality is not possible with the introduction of independent candidates.

Furthermore, it does not come at the expense of the independents, in that it does not diminish the legitimate claim that any one independent candidate may have, that is, him- or herself represented in Parliament. Also, alternative remedies are available. Should the independent candidates wish to lay claim to the additional votes cast over and above that required to secure a single seat in the legislature, they could arrange themselves as a group, in reality a party, and register at the IEC as such.

Consideration was given to the open list system, that is where voters select their specific candidate of choice, and the individual candidates (party or independent) who then receive the most votes qualify. However, it is felt that this option best be left until later, when voters have become more accustomed to the new system.

In the first instance, the closed list system would ensure procedural simplicity.  In the second instance, whereas gender parity could be promoted by requiring parties to alternate their candidates based on gender, that is man followed by woman, or woman followed by man, on the ballot paper. Under an open list system the outcome cannot be engineered in that the outcome is wholly dependent on the voting pattens of the electorate. And thirdly, it is about practicalities. Under an open list system, the names of all candidates – party and independents – will have to be printed on the ballot. In a seven-seat MMC, competed by say the same number of parties as in 2019 (48) and 5 independents, this would require up to 341 names on the ballot paper. It would require a booklet, and at this juncture will be too complex to administer or for the electorate to understand.

No threshold for a party to qualify to take up seats in the legislature is being proposed. This is because in the MMC a “natural” threshold is at play. In a 7-seat MMC, a party or a candidate with more than 7.15% of the vote is guaranteed a seat. In the 3-seat constituencies the natural threshold guaranteeing a seat is 16.67%. The idea is that a small party (or independent candidate) cannot lose the last seat in the MMC to a big party winning all votes other than what the small party (independent candidate) wins, as long as the votes for the small party (v) is more than what the big party wins, divided by five (the divisor for the three seats). So, the small party’s vote share (v) must be bigger than (100 – v)/5 (which is 100/6 or 16,666%). The actual thresholds might in some cases actually be lower than the percentages prearranged, depending on the actual vote distribution among parties and independent candidates. Nonetheless, the values mentioned will guarantee a seat. Therefore, if independent candidates obtain more votes than required for election, the surplus of votes is discarded, in that a single (independent) individual cannot be more than a single individual.

This is justified, in that the Constitutional Court must have foreseen that absolute proportionality is not possible with the introduction of independent candidates, and thus a higher reliance would by necessity have to be placed on the notion of general proportionality.

How parties/independent candidates get ballot paper access

In this regard it is proposed that parties already in Parliament automatically qualify with no further requirements.

For new parties, whilst consideration was given to a monetary fee and/or a certain number of seconding voters, the notion of a monetary fee should be rejected, in that the system should not be weighted in favour of the well-resourced. Instead, a certain number of seconding voters is proposed. For example, votes in the previous election divided by 400, for automatic access to register candidates in all MMCs (with specific candidate lists for each MMC) and to have access to a share of the proportional seats. The figure as it stands now, would be 43 591.

In MMCs, a local party should have access to register for running candidates in a particular MMC, if it has seconding voters equal to 1% of the registered voters in the MMC. Based on current registered voter numbers, in a three-seat MMC the number of signatures might be around 2 500 to 3 000 signatures, and in a seven-seat MMC the number will be between 5 000 and 6 000 signatures.

For individual candidates, the same rules apply as for new parties at the MMC level, given that independent candidates can only stand within a single MMC.

The requirement for independent candidates and new parties to obtain seconding voters will inevitably require additional procedures and resources for the IEC to administer. They will have to, for example, check that seconding voters are legitimate, registered in the MMC, and that they have personally agreed to the secondment. Nevertheless, the seconding route is preferred over a financial fee for the reason mentioned. The IEC is well-acquainted with the procedures, albeit currently at much lower intensity.

Threshold to qualify for representation in Parliament

As already mentioned, for tier one, no formal threshold is proposed, as is the current position. The same applies for tier two, where no formal threshold is proposed, in that the low number of seats in the MMCs (three to seven) provide for a high natural threshold at the MMC level.

Ancillary matters

A number of further technical issues were also considered:

• What happens if a vacancy arises and the names on the MMC lists (and indeed compensatory PR lists) are exhausted?

It is proposed that the IEC, in such instance, allow parties to supplement their lists. The solution for filling vacant independent candidate seats is, however, somewhat more complex. The seat could either remain vacant, or some other mechanism and/or system of by-election will have to be considered.

• Can a candidate stand in both an MMC and on the compensatory PR list?

It is argued that this is a matter for parties themselves to determine. Of course, independent candidates can only compete in the MMC, where they register for participation.

• What about progressively advancing racial, ethnic, sexual orientation, etc, representation through the ballot?

This matter is an overly complex one and no precedence exists. It may also be too prescriptive. It is a matter best left for parties to decide. That said, in that independent candidates can stand for election, it opens the door for any orientation to make him/herself available to represent a specific cause in the legislature.

• Should voter registration be compulsory and what role can the Department of Home Affairs play therein?

The issue is flagged without making a recommendation thereon. It does however recognise that some 30% of potential voters remain outside of the electoral system and a concerted effort is required to motivate them to participate in future elections.

In the age of digitisation, there could be some synergy between the Department of Home Affairs and the IEC, where Home Affairs automatically funnels data to the IEC for inclusion into the IEC’s voter register.

• Can a candidate stand at both national and provincial level?

Party candidates, yes. Individual parties will however set their own internal rules as to how they wish to approach the matter. Although, whilst they can stand for election at both the national and provincial level, if elected to both positions, they will have to choose in which level they wish to serve. They can only take up one seat.

Independent candidates, no. An independent candidate will have to select whether he or she wishes to run for a seat at either provincial or national level. This is because no person may receive two salaries from the state, and it will not be in the voters best interest since he/she will not be able to devote sufficient attention to both positions.

Conclusion

The modelling exercise undertaken by the institute found that the proposed system does not negatively (or positively) impact any party. It shows that the existing power ratios between parties would be maintained. It also shows the geographic spread of seats, continue to reflect the strongholds of the individual parties.

The model being proposed by the institute therefore not only gives effect to the constitutional requirement of accommodating individual candidates, but it also goes some way to address clear voter desires to be able to hold their representatives more accountable. It also does so in a way that the benefits attached to a PR system are not diminished in any way. The system is fair, simple, and it serves the voter.

This article is an extract of the institute’s recently published report on a proposed new electoral system for SA. The report can be accessed at https://drive.google.com/file/d/1EeTtWcxS4rONnXK2WufHTfArsaoDwkyR/view