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Former president Jacob Zuma enjoys a light moment in the National Assembly of Parliament in 2015. (AFP)
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There has been much talk in the media recently about the electoral system that operates in this country and the related question whether its reform might not produce a more accountable, transparent democracy.
It appears to be common cause that the present system bestows enormous powers on the "party bosses" who organise the electoral lists for their respective political parties. As a result, Members of Parliament are accountable to the party and not in any direct way to the voters.
In addition the president, who in terms of the Constitution is possessed of enormous powers, is elected by the vote of the majority party in the National Assembly. Although upon this election, the president ceases to be a member of the National Assembly, he/she as the leader of the majority party as was the case during the decade of Zuma rule controls the caucus of the majority party in the National Assembly.
This situation is hardly conducive to a resilient doctrine of separation of powers between the legislature and the executive. In short, South Africa adopted a hybrid system that has an executive president but not one chosen directly by the electorate. By being elected through the majority party in the National Assembly, the president effectively resembles a prime minister in the Westminster system which was the basis of government for most of our pre-constitutional history; I leave aside the byzantine constitutional system introduced in 1983 in what proved to be a dying few years of the National Party regime.
The system of government set out in the Constitution, probably inadvertently, created the ideal structure for Jacob Zuma and his predatory elite to create a parallel state to the constitutional one. Separation of powers between the legislature and the executive was honoured in the breach rather than in compliance. After all, Members of Parliament who were beholden to Mr Zuma as the controller of the ruling party were hardly likely, save for some gloriously courageous exceptions, to attempt to hold the president accountable to the Constitution and certainly not when he was at the height of his powers. And if that deterrent failed, the party bosses would have a not so quiet word with a recalcitrant Member of Parliament to ensure that he or she towed the party line.
So much is agreed between those participating in the debate about electoral reform. Unfortunately, as is typical in South Africa, the debate then assumes a binary: either electoral reform as the panacea against a repeat performance of state capture or electoral reform will make no significant difference to a further attempt at state capture. In terms of the latter argument, it is political vigilance that counts not electoral changes.
Understandably, the debate has led us back to the report of the electoral task team of January 2003 which was chaired by Dr Frederick van Zyl Slabbert. The majority of the team recommended the creation of approximately 69 multi member constituencies to provide 300 representatives for the National Assembly with a further 100 representatives allocated from national lists to restore the principle of overall proportionality.
The idea was that a number of representatives elected to each constituency would vary, depending on a number of voters, from three to seven for a national election. Voters would have a choice to vote for between three to seven Members of Parliament, either drawn from one party or from a number of parties.
The majority of the electoral team considered that, by attempting to move beyond an exclusive list system controlled by the political parties, and by giving voters a greater choice as to the identity of their representatives, an increased level of accountability could be achieved.
This proposal could be combined with the president being directly elected by the electorate. To the argument that people only vote for the political party of their choice and not for the representatives who are on the list, there was significant research which indicated that the ANC would have garnered far more votes in a national election than would Jacob Zuma, had he stood for direct election as president.
Change of the electoral system of this kind would not on its own ensure that state capture would invariably be prevented in the future. An electoral system on its own can always be subverted by those who are determined to undermine the core of the constitutional values to ensure great predation for themselves and their cohorts.
But that is hardly where the debate should be centred. The key question is whether a change in the electoral system together with a reconsideration of the powers of the president as presently provided for in the Constitution would not contribute to a change in the balance of political forces and therefore make it far more difficult for another Zuma to take control of the country.
At the very least by ensuring that Members of Parliament are beholden to voters in a more direct way, the principle of separation of powers could be strengthened. In order to be strengthened there has to be some barrier between the legislature and the executive; that is provisions which ensure that the latter does not exercise unfettered control over the former as has been the case under the present Constitution.
It is for this reason that electoral reform designed to facilitate a more viable conception of separation of powers and hence a richer idea of accountability could be developed by way of electoral reform.
This is the time to have this debate. It is clear that the present constitutional arrangement did not create the necessary checks and balances. True, Mr Zuma would have attempted to capture the key institutions no matter what constitutional provisions were in place.
But, were the Members of Parliament more accountable to the public particularly within the context of an increasingly unpopular president, one suspects that more than the courageous few would have come forward at some point to exercise better oversight than the non-existent form thereof that took place for the past decade.
For these reasons we require a nuanced and careful debate about both electoral reform and the powers of the president going forward, one that goes beyond electoral reform is the solution as more vibrant politics curbs the move to state capture. A model drawn on the Slabbert team's proposals may well assist in the creation of that more vibrant politics.
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
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