“There is clearly a tension between the imperative to have a fair and inclusive electoral system and having an electoral system which facilitates accountability. The Van Zyl Slabbert Report majority view proposed that ‘a preoccupation with accountability should not jeopardise the values of fairness, inclusivity and simplicity’. But the converse is also true.”
By Lawson Naidoo, Executive Secretary of the Council for the Advancement of the South African Constitution – www.casac.org.za
It was called a game-changer. Victory for democracy and peoples’ power, heralding an era of ethical governance. The end for impunity and state capture, weakening the power of party bosses. These were some of the epithets that greeted the judgment of the Constitutional Court in the New Nation Movement’s case that was delivered in June 2020.
The judgment declared aspects of the Electoral Act unconstitutional to the extent that they do not make provision for individual candidates to contest elections to national and provincial legislatures. Parliament was directed to amend the Electoral Act to correct this deficiency. It is somewhat ironic that political parties currently represented in Parliament have the responsibility to craft legislation to enable individual candidates to challenge them (i.e., political parties).
This was undoubtedly a landmark judgment which has the potential to deepen democracy in South Africa if we take the opportunity to move beyond the confines of the judgment and overhaul the electoral system. But it is not as straightforward as might appear on the surface. For there to be substantive electoral reform there are other issues that must be resolved to determine the kind of electoral system needed to address the democratic challenges that we face in South Africa. The judgment is a step towards reform – a step that is long overdue.
The van Zyl Slabbert Task Team submitted its report to Cabinet in 2002 and it is only now that we are picking up its cudgels and beginning to engage in a national discourse about the kind of electoral system that may be appropriate for South Africa today.
The New Nation Movement case comprised two separate concurring judgments delivered by Justices Mbuyiseni Madlanga and Chris Jafta and a dissenting judgment from Johan Froneman. The majority declared that certain parts of the Electoral Act of 1998 undermined the political right of ‘every adult citizen … to stand for public office” as enshrined in section 19 (3)(b) of the Constitution as well as the right to freedom of association in section 18. They determined that section 18 includes an implied right not to join an association – so to be compelled to join or form a political party to contest elections was found to be unconstitutional. Justice Johan Froneman adopted a contextual and purposive approach in interpreting s.19 rights – arguing that political parties play a central role in our democracy, and that individual political rights can be exercised without changing the electoral system. He was of the view that Parliament could amend the electoral laws to provide for individual candidates, as it had done at a local level, but this is not something that is constitutionally prescribed.
The majority found that elections limiting participation to party lists should have ended after the 1999 elections. Parliament failed to do so, despite the report prepared by the Van Zyl Slabbert Task Team. That report was not referred for consideration by Parliament and public, and Cabinet endorsed the minority opinion which preferred the continued use of the existing system that was in place since 1994 – the closed party list and proportional representation (PR) system. It should be borne in mind that there was no electoral register in 1994, and it would have been impossible to develop one in time. So, a simple PR system made perfect sense, but the Interim Constitution approved this for only the first two elections, whereafter a review of the electoral system was mandated.
The Constitutional Court has given Parliament twenty-four months to amend the Electoral Act, a deadline that will expire in June 2022. There has been some concern that the time is insufficient, but I would remind readers that a whole new Constitution was debated and finalised in the same timeframe between 1994 – 1996! There is no reason why Parliament cannot make the necessary amendments to the Electoral Act in two years. The court was firm in its view that the new electoral system needs to be in place for the 2024 national and provincial elections.
In March 2021 the Minister of Home Affairs, Aaron Motsoaledi, appointed a Ministerial Advisory Committee comprised of experts and chaired by Valli Moosa to consider option for electoral reform. Although belated, this is a welcome development. Tthe issue of electoral reform is far too important to be left solely in the hands of politicians, although they will ultimately make the decision. The Committee is canvassing opinions from interested stakeholders, and it is expected that its recommendations will be submitted to the Portfolio Committee on Home Affairs in the National Assembly.
In its submissions as amicus curiae in the New Nation Movement case, CASAC argued that Parliament is best placed to determine the most appropriate electoral system for the country – noting that Parliament is constitutionally obliged to facilitate public participation – as this is primarily a political rather than a legal judgment. Justice Madlanga confirmed this in stating, “a lot was said about which electoral system is better, which system better affords the electorate accountability, etc. That is territory this judgment will not venture into. The pros and cons of this or the other system are best left to Parliament.”
In other words, the judgment does not mean that we will have a Westminster-style constituency system, nor does it mean we will have a directly elected President, Premier or Mayor. In developing a new electoral system Parliament will be constrained by some existing constitutional measures. Firstly, the Constitution provides that the President is elected by members of the National Assembly at its first sitting after a general election, or whenever a vacancy occurs. Secondly, that any electoral system must “result, in general, in proportional representation”. A ‘first-past-the-post’ constituency model will not be compatible with this constitutional provision.
Our existing constitutional framework clearly favours a broad proportional representation model because it produces a more inclusive outcome in which all votes matter, and thereby promotes national unity and reconciliation. This is seen in the current National Assembly which comprises 17 political parties, the smallest being Al-Jama which garnered just over 31,000 votes. Thirdly, the Constitution limits the size of the National Assembly to between 350 and 400 members. Any deviation from these prescripts will require constitutional amendments. But if we are to overhaul the electoral system, these constitutional constraints should not be an insurmountable barrier and may be reviewed. This is a ‘once-in-many-lifetimes’ opening to craft a mechanism for choosing our representatives in a manner that strengthens our democratic culture.
CASAC has long argued that Parliament needs to engage with the report of the Van Zyl Slabbert Task Team. And not because we agree with its majority view or even minority one. But that we need to have a public debate on the kind of electoral system that can enhance our democracy. Parliament’s own High-Level Panel chaired by former President Kgalema Motlanthe, also urged Parliament to review and amend the Electoral Act to provide for some a constituency system. Parliament regrettably failed to do so.
Any electoral system must embrace the values of fairness, inclusion, simplicity and accountability. The idea of fairness, combined with the constitutional requirement for general proportionality, militates against pure constituency-based systems, as they do not provide equal value to all votes that are cast. Those votes that went to a losing candidate would simply be ignored in such a system. Inclusivity similarly constricts desirable scope, as most constituency systems are explicitly exclusive of smaller parties, especially those not geographically concentrated.
The issue of simplicity implies we should be cautious about excessive restructuring of how votes are allocated and counted in electoral systems, especially in more complex systems like STV (single, transferrable vote) and ranked choice voting. These would require a higher degree of voter education to enable voters to cast votes meaningfully.
There is clearly a tension between the imperative to have a fair and inclusive electoral system and having an electoral system which facilitates accountability. The Van Zyl Slabbert Report majority view proposed that “a preoccupation with accountability should not jeopardise the values of fairness, inclusivity and simplicity”. But the converse is also true.
This was an issue that was expounded in a paper commissioned by CASAC in 2015 in which Prof Steven Friedman looked at the issue of accountability and electoral reform, and whether reform of the electoral system would automatically enhance accountability. His conclusion was that electoral reform may be necessary, but it is not a sufficient tool to ensure accountability. Friedman argued that we need to engage at a deeper level towards changing the existing political culture. These relate, inter alia, to internal party matters including the constitutions of political parties aligning with constitutional imperatives and ensuring that there is sufficient internal party democracy. This is important especially in the context of parties being recipients of large sums of public funds allocated to them by Parliament in terms of the Constitution – this is now encompassed in the Political Party Funding Act, 2018. To justify public funding, parties should submit to a level of regulation by the state.
Let us now look at the three types of electoral systems, and how they impact on these values.
Constituency systems are often advanced as the best way of holding MPs accountable. Certainly, the “Westminster” model helps to build a direct link between the constituent and her representative. The voter knows exactly who their MP is and can extract accountability from this representative at the ballot box. However, it cannot be seen as a panacea to problems of accountability as outcomes are often dependent on issues external to the electoral system. For instance, the relationship between the parties and representatives and the parties and the electorate modify behaviour. MPs in the UK House of Commons are often very strictly whipped and will vote against the preferences of their constituency if party allegiances demand.
Similarly, the partisan identification of the electorate changes how MPs are able to act and how much power they hold vis-à-vis the party they form part of. If an MP is elected in a constituency with strong partisan allegiance to their party, the odds of them rebelling against their party declines, as winning re-election as an independent is unlikely. Strong partisan identification also allows parties to “parachute” party elites into safe constituencies, which harms the constituent-representative bond. Constituency systems, especially those requiring only vote pluralities (first-past-the -post), are harmful to inclusivity and reduce the number of effective parties in the legislature and may make the votes of some voters subjectively “more important” in individual elections where swing constituencies are key.
On the other end of the spectrum, proportional representation (PR) systems vest almost exclusive power in the political party, not the elected representative. This negates accountability for individual MPs as accountability is effectively delegated to the entire party structure rather than to the MP. South Africa’s closed list system is possibly the most generous to political parties and to party bosses, as they are effectively at liberty to bring MPs in and out of Parliament as they please. We saw a recent example of this in the Kwa-Zulu Natal Legislature where the former eThekwini Mayor, Zanele Gumede, who is facing charges of corruption and fraud, was elected as a member of the Provincial Legislature as a result of the ANC changing its electoral list for that Legislature, and was able to parachute her in ahead of other candidates who had previously been on that list. This demonstrates the power of political parties that can manipulate electoral lists and deploy people as they see fit.
The current system has not successfully built much of a rapport between MPs and the electorate, despite the informal ‘constituency system’ that exists and funded, at least in part, from the fiscus. One might be tempted to conclude then, that PR systems are ineffective in achieving accountability. Again, however, there are externalities that can modify the behaviour of this system. For instance, a system like South Africa’s (with no ‘threshold’ and pure PR) lowers the cost of entering opposition or forming party splits, which allows for increased internal accountability in parties. So, the threat of a defection or a split may in fact enhance accountability to some extent. It also allows voters wishing to punish the incumbent to coordinate votes fairly easily, as any anti-incumbent vote counts (in constituency systems, this form of tactical voting is much harder). PR is also a very inclusive and fair method of apportioning representation, given it is the most accurate way of representing an electorate’s preferences.
The natural conclusion may be: why not have both systems?
Before dealing with this it is also worth stating that globally, where there have been moves recently towards reform of the electoral system, it has been to move away from constituency systems towards proportionality because it is seen as producing fairer electoral outcomes. We would be bucking this trend by moving away from a pure PR system towards some form of a constituency system or hybrid model.
Mixed member or hybrid systems are increasingly in vogue and seem to deliver a “best of both worlds” outcome: the constituency system can allow for the direct MP-constituent relationship, whereas the PR system allows for proportionality and gives balance and representation to smaller opposition parties. The key question in this regard is whether we opt for a Mixed-Member system as proposed by the van Zyl Slabbert Report (i.e., where the compensatory PR list makes up for imbalances in the constituency system) through the allocation of the seats from a closed party list or a Parallel List system (where there is a separate PR system to the constituency system). In our current context the Mixed-Member compensatory system is the most congruent with the Constitutional imperative to deliver general proportionality.
Slabbert proposed 69 multi-member constituencies, each electing between 3 and 7 MPs depending on the size of the voter base. This would permit individual candidates to contest elections in these constituencies which would elect 300 members of the National Assembly with an additional 100 members elected from a party list system. Given that the demarcation of constituencies is a drawn out, complex and inevitably controversial subject, using existing municipal boundaries may provide a ready-made solution. However, the large size of each of these constituencies may only create an illusion of bringing representatives closer to the electorate. We currently have a multi-member system if we consider that each of the provinces is a constituency in the National Assembly. Would increasing the number of constituencies from 9 to 69 really create a closer nexus with the electorate?
The existing local government election system delivers a mixed system with a 50/50 split between ward counsellors and PR counsellors. It has allowed independent candidates to stand for office, albeit with limited success in competing with established political parties. The local government system also makes it clear that the design of the electoral system does not ensure accountability or inclusivity: these values have not been realised in the mixed system, and some might claim that local government has been less accountable and inclusive than the national and provincial levels. This underlines the need to change South African political culture in search of greater accountability, and not to see the electoral system as a quick fix.
In conclusion, the judgment opens the door to craft a new electoral dispensation; it is not a panacea for boosting accountability and ensuring clean governance. Key among the answers we must find is how we strengthen the institutional law-making and oversight capacity of legislatures, and how we ensure that those we elect, be they from parties or individuals, are held accountable between elections.
The choice comes down between a multi-member constituency model and a single member constituency. Within the latter the choice is between a plurality (winner is the one with most votes) or majoritarian (requiring 50%+1) first-past-the-post model.
The majoritarian model would require a ranking STV system or a run-off between the top two candidates and is therefore more complex. The plurality model is simpler but undermines the proportional nature of the outcome. Either of these would be complemented by a PR list, and here the choice is between a compensatory list or a separate PR vote. The compensatory list would allocate votes according to the party whose candidate one voted for in the constituency so there would be one ballot paper with independent candidates votes not reflected in the PR list. The separate PR vote allows voters to make independent choices of candidate and party.
The foundational constitutional value of responsiveness has proved most elusive. As Van Zyl Slabbert pointed out in his report, “….no electoral system can compel an elected representative to behave democratically, take care of a constituency or party responsibilities, or be a disciplined, dedicated member of parliament.” That is a responsibility that ultimately rests with us, the citizens of South Africa.
Finally, when applying our minds to amending the electoral system, we should note that South Africans have a declining relationship with elections. Less than half of the voting age population voted in last year’s elections, and voter turn-out and has been declining steadily since 2009. Clearly South Africans decreasingly see elections as a means to express their views, interests and preferences. We have instead exercised the rights to assembly, demonstration, picket and petition. It is particularly poignant to note that of the 9 million South Africans who failed to register for the 2019 national elections, 6 million were aged between 18 and 29. The opportunity now exists for reform of the electoral system to begin to turn that around and promote greater participation in elections, especially by young voters.