The Genesis Behind ANC’s Support For Proportional Representation – A historical account – By Justice Albie Sachs

Our concern was always about how to get the best constitutional system for our country. It was definitely not about how could we devise constitutional arrangements to maximise the chances of the ANC winning power at the first elections. On the contrary, in at least two respects we took decisions that we knew would reduce the possibilities of a massive ANC electoral victory.

Introductory Note: I was invited by the Editor of Umrabulo to contribute to Umrabulo Journal written material I produced on ANC’s thinking in the early 1990s concerning the electoral system for a democratic South Africa. This is an extract on the topic from a book I authored, entitled Oliver Tambo’s Dream (African Voices, 2017), followed by some explanatory and supplementary thoughts.

UWC Workshops On Critical Constitutional Issues

When the ANC Constitutional Committee comprising Zola Skweyiya, Lehlohonolo Teddy Pekane, Jobs Jobodwana, Kader Asmal, Brigitte Mabandla and I returned from exile in 1990, we were joined by people like Pius Langa, Dullah Omar, Bulelani Ngcuka, Fink Haysom and Essa Moosa. At the request of ANC  President Nelson Mandela, Arthur Chaskalson and George Bizos (who were Mandela’s lawyers from the Rivonia Trial) attended and participated actively in our meetings.

Our Constitutional Committee had become pretty strong in terms of brain power.  We had the University of the Western Cape (UWC) as our base for organising a series of widely supported workshops on critical constitutional issues in advance of the negotiations. More than half of the members of the committee went on to find positions at the Community Law Centre at UWC.

UWC became the engine room of committed thought about our new Constitution. It was an active, engaged, scholarly life – not just waffle, slogans and fancy words.

How could we get a country with deep values that were really meaningful for the lives of the people? Not just a territory with populations in it, divided into Bantustans and group areas and whites and Blacks and Coloureds and Indians.  But a united and single country.

And how could we do so on the African continent when much of the world was influenced by racist ideas? By Afro-pessimism, believing that democracy was not for Africa and that Black people couldn’t rule. That tribalism would take over and personal ambition would be inevitable. We had to prove and disprove and re-prove to peoples of our country, the continent and the world as well as ourselves that our beliefs were true. That democracy was for us.

A series of workshops was accordingly organised by UWC’s Centre for Development Studies and the Community Law Centre, working closely with the ANC Constitutional Committee. All the ANC regions sent participants, and many progressive experts from different parts of the world joined us. Engaged South African scholars, thoughtful urban and rural activists, and activist lawyers pooled ideas in a spirit of lively, open debate. These workshops dealt with matters such as whether to have a Constitutional Court, the electoral system, the regions, social and economic rights and affirmative action. And the topic on which we had the greatest number of workshops was that of property and land redistribution.

The challenge of constitution-making was to go deep into ourselves. To create a set of institutions and values that honours all of those who believed, struggled and fought for the possibility of South Africa that is a free and democratic country. We had been very good at making the country ungovernable. Oh, we were smart at that. But governing – now that was another whole thing altogether.

How would we structure government? What strategies in particular should we adopt?

We were used to being the opposition – challenging, destroying. For some people, in fact, it was so much part and parcel of their psyches to oppose that they continued to do so even when we were making progress in building something new. Yet many of us were longing to heal, build and construct.  To see and taste the fruits of the freedom for which we’d been fighting for so long.

There were things we knew nothing about.

Should we have a Constitutional Court? What kind of electoral system should we have? Should socioeconomic rights be enforceable as constitutional rights by judges? How to organise the regions?

We had to understand the implications of all these constitutional proposals. There were powerful moves to divide South Africa into little Cantons. The upmarket white Bishopscourt would be in one Canton and disadvantaged Black Langa would be in another, and they would each have self-government. How did affirmative action work in Malaysia, India and the United States?

Our concern was always about how to get the best constitutional system for our country. It was definitely not about how could we devise constitutional arrangements to maximise chances of the ANC winning power at the first elections. On the contrary, in at least two respects we took decisions that we knew would reduce the possibilities of a massive ANC electoral victory. Both related to matters that arouse lively debates today.

The first was to opt for a president chosen by Parliament and not by a direct vote. The second was largely to favour an electoral system based on Proportional Representation (PR) and not constituency representation. The issues of presidential power and of PR are both very much in the news today, so our thinking at the time is worth mentioning.

Deciding between a presidential or prime-ministerial system

Already in Lusaka we were discussing whether we wanted a presidential system or a prime ministerial system. Should the head of the country be chosen directly by popular vote, as in the United States or in France, or indirectly by Parliament? At first we opted for a directly elected president. We knew that Nelson Mandela was enormously popular and that he would sweep to power as President carrying the ANC into office.

But the more we thought about it, the more concerned we became. We used to have a governor general in the old days – sent by the British, representing the king or the queen – who was called “the supreme chief of all natives”. Totally top down. Then we had had the traditional leaders under apartheid who had sided with the regime and became dictatorial towards the people. Top down. Then, in our struggle, underground political and military work by its very nature had had to be top-down.

Now you put these three traditions together and you choose a president as head of state, you can say bye-bye to Parliament. We said, no – we wanted the President to be accountable to Parliament, not vice versa.

Finding the right electoral system

Today many question the use of PR and argue that Members of Parliament should be chosen in constituencies where they would be directly accountable to the local electorate. We were used to secret ballots inside the ANC to elect the leadership and unions had similar.  But we knew nothing about electoral systems for a whole country.

So we invited people from other countries and experts from inside South Africa. People from each of the ANC regions came to the workshop and we collaborated with other university bodies in a very free and open way. We didn’t start off with any pre-determined view.

After many presentations, we divided into three different breakaway groups. We looked particularly at the Single Transferable Vote (STV), PR and directly elected constituency representation, which the whites had in South Africa. Each of the three groups came out with the same recommendation – to use PR with two important qualifications. The first was that the PR party lists would be organised on both a national and a regional basis, so as to give the regions control of half the MPs. The second was that pure PR would be used for the first elections only, where our intention was that Parliament would become a Constituent Assembly to draft a new Constitution. But the second round of elections would use a mixed system, like in Germany – where constituencies and PR are combined.

You might be surprised to know there is nothing in the Constitution today that prevents that from happening. The Constitution says the electoral process must in general result in PR. At the local government level, we have wards and we have PR. We don’t have to change the Constitution to have directly elected MPs. The Van Zyl Slabbert Commission on Electoral Reform (2003), which was quite broad-based, came up with some very interesting proposals for combining PR and directly elected MPs. They should be looked at on a cross-party basis.

The fact is that, in rejecting the notion of using single-member constituencies, the ANC knowingly forewent the possibilities of getting an 80 per cent majority in the first Parliament resulting in only 60 per cent of the vote. Not only would an 80 percent win have been disastrous for the project of building national cohesion through an inclusive constitution-making project. It would have been inherently undemocratic.

As our workshop had established, using a system of First Past the Post (FPTP) in single-member constituencies results in gross over-representation of the leading party. Thus, in the United Kingdom, a party that secures 45 per cent of the votes could end up with two thirds of the seats.

Additional commentary

At the workshop described above, the breakaway groups were guided by three broad principles. We wanted representation that best corresponded to the will of the people. We wanted Members of Parliament to be accountable to their voters. And the electoral system had to be easily manageable in a country in which a large section of the population had never had the opportunity to vote and in which many people were not literate.

After a number of presentations were made, the breakaway groups considered four major electoral systems. These being single-member; constituency-based representation for the First Past the Post (FPTP); the Single Transferable Vote (STV); Proportional Representation (PR); and a mixed system (PR plus constituencies). The air was filled with acronyms.

First Past the Post (FPTP). I had lived part of my exile in England where you knew your local MP. You could write to your MP and go every Saturday morning to their office with your problems. In South Africa we were used to constituencies. But there were great problems with this system.

Firstly, it could produce severely skewed and undemocratic outcomes.

Secondly, delimitation of the constituency boundaries would be a nightmare. Parties would fight over alleged gerrymandering rather than over policy. Our first democratic elections would have been mired in acrimony.

Thirdly, constituencies would replicate and entrench the spatial apartheid divisions of our country: Blacks would represent Blacks; Whites, Whites; Indians, Indians; Coloured people, Coloured people.

Fourthly, constituencies would favour strong, ambitious men. We wanted to ensure that women, who had contributed so much to the struggle, would be fully represented. We weren’t short of typical MPs – charismatic crowd-pleasers with the gift of the gab. But we also wanted quiet and thoughtful people who could become great parliamentarians because of their values, knowledge and wisdom. And since the Cabinet would be drawn from Members of Parliament, we needed a place for people with expertise in relation to finance, health, education and so forth.

Finally, we were concerned about what Americans call the ‘pork barrel factor’ – the development of a semi-corrupt relationship between ambitious party leaders who secure allegiance from MPs by offering or threatening to withhold economic investment in their constituencies.

Single Transferrable Vote (STV). A member of the Liberal Party in the UK persuaded us that the electoral system best guaranteed to reflect the democratically expressed will of the people was the STV. But it soon became clear that STV was a complicated system for any country and would have been quite impossible to explain and manage in the circumstances of South Africa. Apart from anything else, it required literacy for people to be able to read the names of each and every candidate and would effectively have disenfranchised millions of our people who had been hardest hit by Apartheid.

Proportional Representation (PR). What we immediately noticed about PR was its fluidity and adaptability to South African conditions. In particular, it would allow parties to have a mode of representation in Parliament that went beyond the locked-in, ghetto-like representation that the single-member constituency system would produce and would reflect the diversity of the nation.

It would fit in well with the ideal that ‘the people shall govern’. It would enable us to promote the development of a national vision that would take account of our diversity, but not just be the sum of all our distinctive parts. It would encourage people to think outside of the parochial boxes into which apartheid had squeezed us, facilitating the development of the non-racial and non-sexist South Africa we wished to create. It would encourage political parties to seek support from all sectors of South African society and not only from  predominant groups in any particular constituency.

Finally, it would be easy for voters to understand and make their choices. It was operationally easy for votes to be sorted and counted. All that the ballot papers would need would be pictures of leaders coupled with the party colours.

As it turned out, the rapporteurs for all three breakaway groups reported that they supported PR. At the same time, all were concerned about the lack of direct accountability of individual MPs to their electors. As a gesture in the direction of local accountability, all accepted that half the MPs should be elected from national party lists and the other half from provincial party lists. This would mean that, if we were to have nine provinces, the people in each province would be able to choose and hold to account their particular quota of MPs.

A key factor in our minds was that the first elections were for a body whose main function would be to serve as what we then called the Constituent Assembly (CA) that was to draft the Constitution. We wanted everybody to be in the CA – even the smallest groups. Political scientists warned us that if we had PR, we would need to have a threshold or minimum cut-off point of anything between two and ten per cent of the national vote. This would be to avoid a proliferation of small, single- interest parties which would lead to groupings that would make it very difficult to govern in the broad national interest. But we said no to a threshold. We didn’t want anyone to say that this wasn’t their Constitution; only an ANC one. And as things turned out, if we had gone for a two per cent threshold, the Democratic Party, the PAC, and the Freedom Front wouldn’t have made it into the Constitutional Assembly.

Our understanding at the time was that our task was to ensure that a truly representative and all-embracing CA be elected to draft the country’s new constitution. It would be up to the CA, then, to make the final decision on which electoral system to have. Our thinking at the workshop was that something on the lines of the German system would be best. It would secure all the advantages of PR, while introducing strong elements of direct local accountability.

I later stepped down from the National Executive Committee and the Constitutional Committee of the ANC and withdrew from party politics because I wished to be considered for appointment to the Constitutional Court. As a result, I was not a member of the CA and cannot say why a mixed system along the lines of the one used in Germany was not chosen. It might have been that the first election had gone so well that a decision was taken not to tamper with the system that had produced it.

However, by stating that the electoral systems for the National Assembly and provincial legislatures should “in general result in proportional representation”, the CA expressly left open the possibility of having a mixed system. Whatever the motivation, we in fact ended up having a mixed system at the municipal level only. What is being debated now is how, broadly speaking, to ensure that, within the framework of the constitutional requirement to maintain PR in general, members of the national and provincial legislatures can be held more accountable to their electors. A very specific element of this wide question is how to devise an electoral system that, in keeping with a determination by the Constitutional Court, would allow independents outside of any political party to stand for election at national and provincial level.

PS:-. I featured in an amusing moment at the workshop. We had almost invariably found that proposals from mainstream American political scientists were unduly skewed towards securing some form or other of white minority veto. Still, we thought it would be courteous to accept an offer from the US Consulate to arrange for a number of distinguished American academics to phone in their proposals for an electoral system in South Africa.

Professor Donald Horowitz informed us of what he believed was the most important thing that we needed.  He stated that “Lawyers always say, ‘On the one hand you should do this, on the other hand you should do that.’ What you need in South Africa is a one-armed lawyer.”   In the days before Skype and Zoom, he couldn’t understand why he heard an eruption of loud laughter in the room.

The ANC already had a one-armed lawyer who had lost an arm to a bomb placed in his car by apartheid security agents. It was me.