OPINION | Harbingers of electoral reform: Judicial activism at work

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Duncan Alfreds, News24

There is still no guarantee that a future electoral system will ensure that elected representatives will be accountable to voters. But, then again, the search for a perfect electoral system is a chimera, writes Ivor Sarakinsky.


A small change can have significant consequences. That is the point of the "Butterfly Effect", the metaphor that popularised Chaos Theory some years back. The recent Constitutional Court decision on independent candidates standing for election to National and Provincial Legislatures is another fine illustration of this principle.

At one level, it seems insignificant changing words in clauses in the Electoral Act to accommodate independent candidates. All that needs to be done is a minor amendment, where political party is changed to non-affiliated individual. End of story. However, the Justices, in their wisdom, were fully aware of the implication that their majority decision would have and gave Parliament 24 months to amend the legislation. Why so long if it is just changing a few words?

It's the consequences of those few words that are incredibly complicated. At national and provincial level, elections are held on a pure Proportional Representation (PR) system. Parties draft lists before an election and the number of party votes determine who is lucky enough to become an elected public representative. The incentive in this system is to get as high up on the list as possible to increase the chance of becoming an elected politician. This ambition must of necessity entail being reasonably compliant to the will of the bosses who control the list process. Citizens have nothing to do with it. It is an internal party political process. Success here depends on strategic acquiescence, calculated obsequiousness and absolute loyalty.

The weaknesses of the PR list process are well known and certainly illustrative of legislative accountability and oversight failure of the executive at national and provincial levels. It partly explains painting nails in a special committee dealing with the Nkandla affair, at least before the Constitutional Court had to remind Parliamentarians that the oaths they swore before receiving their first salary cheques had quite an important meaning. Even under lockdown, legislatures have been noticeable by their absence in performing their constitutional functions.

All of these and many other oversight failures, such as the all-time low Life Esidimeni tragedy, are partly or even largely explicable by the way those in the legislature are aligned to those in the executive through a party leadership hierarchy that has power of their position through their control of the list.

This is not just a problem for governing parties. The same folly of political ambition and fawning at leadership for advancement is a common feature of opposition parties in South Africa. The DA has an interim leader and an election is pending. It is amusing to watch the jockeying and positioning as members sing for shadow positions by betting on the heir apparent. The EFF, on the other hand, uses the power of list control to quash any hint of internal dissent.

While it is appropriate that independents be allowed to stand for public office, it is far from clear whether they will be able to add value to legislative processes or even get elected into office. Without party political institutional, organisational and campaign machinery, plus the resources needed to stand, it is likely that very few will be successful.

Perfect electoral system a chimera

The payment of a deposit, and the threat of losing a large amount of money for not getting above a threshold percentage of votes, will have a chilling effect on candidates coming forward. Once in office, comparative experience indicates that independents vote with one party against others. They might even lever influence for opportunistic private gain when voting is close on a matter. Some small parties in South African local government coalitions are examples of this possibility. This means that the intended impact of the Constitutional Court will be marginal and even possibly negative.

The real significance of the Constitutional Court judgment is that it will weaken, but not dissolve, the power of party bosses. This seems unrelated to allowing independents to stand for election. The connection is that it is impossible to enable independents within a pure PR system that is currently in place at national and provincial level. The formula for representation is number of available seats allocated to the percentage of votes each party receives. Currently, around 55 000 votes is needed for a seat.

What happens if an independent receives 110 000 votes, equivalent to two seats? It means that a large number of votes are wasted and cannot be transferred. On the other hand, an independent could get into office through the mathematics of totalling up votes in the same way that very small parties end up with one representative in legislatures. In both cases, there is a representative deficit.

This means that the PR system at national and provincial level has to change. The only way that independents can have a fair and representative opportunity to get into public office is by winning a constituency first-past-the-post election. This means extending the current municipal mixed system, combination of Ward and PR, to the other two levels of government. In New Zealand, the Mixed Member Proportional system has worked very well in straddling the divide between the excesses of pure PR and Constituencies.

Many years back, the Van Zyl Slabbert Committee investigated this matter and proposed exactly such a model for South Africa when the weaknesses of pure PR had begun to manifest. It gathered dust, until now. Party bosses were reluctant to support it in Parliament as it would contribute to the weakening of their control of their respective caucuses. The Constitutional Court has blasted that obstacle out of the way. It is unfortunate that Parliamentarians avoided this issue resulting in another judicial intervention in politics that creates added tension to an already fraught relationship.

A yet to be decided but likely Mixed Member Proportional type system will weaken party bosses by linking some elected representatives directly to their voters. It will bring real constituencies versus the current paper constituencies, where voters do not even know who Parliament has allocated to them. This is a good thing. But there will still be the ambitious and compliant PR list Honourable Members that will avail themselves to the whims of leadership.

The electoral reform that must follow will ameliorate the excesses of PR, but create a two-tier system in national and provincial legislatures, where the PR guys act as bad cops and do party bidding, while the constituency guys have to be popular to be re-elected.

There is still no guarantee that a future system will ensure that elected representatives will be accountable to voters, and act responsively and responsibly to their needs and interests. But, then again, the search for a perfect electoral system is a chimera.

 - Ivor Sarakinsky is a professor at the Wits School of Governance.

 

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