Ralph Mathekga: Court ruling exposes flaws in our political system


This truth about our politics is not only visible to the court, but it also shines bright in the eyes of our politicians, writes Ralph Mathekga.

The Constitutional Court’s ruling that the electoral law in South Africa is unconstitutional because it does not allow independent candidates to stand for provincial or local elections is a far-reaching decision that would set South Africa on a long path of electoral reform.

The judgment has evoked mixed reactions across society; with some observing that it would not lead to changes in the way in which the president is elected to office. Some have maintained that the judgment will make the elections at provincial and national spheres of government more dynamic, as independent candidates will be able to challenge the big wigs.

In the judgment, the court characteristically did not prescribe how the current electoral law should be emended, or which electoral system should be adopted as a remedy for the deficiency that triggered the litigation against the current system. As a result of this lack of prescription by the court, the current system could be emended in a million different ways which could be characterised as minor adjustments to major adjustment.

A minor adjustment to the current system can be in the form of allocating a portion of seats in Parliament and provincial legislatures to representatives who will be elected directly from their constituencies. With some minor rezoning of the country to draw constituency borders, then the work is done. That would be a simple cut and paste of the mixed system currently used at local government whereby a certain portion of seats in council are held through a constituency system in the form of ward councillors, with a certain position of seats allocated to parties in terms of their proportional performance towards each other.

We know that the current mixed system used at local government has not solved any problems. The inclusion of independent councillors in councils did not pose any problems for the hegemony of political parties in municipalities. Independent candidates have not made a distinct impact on accountability of councils. I can go further and state that I have not seen any research showing that South Africans tend to trust independent candidates more than parties.

Political parties have not had any trouble in imposing their mayors across councils, despite the presence of independent councillors. This experience would certainly justify the cynicism that the court’s decision would have no immediate bearing on South African politics, that it would just unnecessarily bring commotion into our politics and consequently delay policy implementation as there will be too many voices from different corners in Parliament. This is a recipe for policy gridlock, from this point of view.

While I empathise with this sentiment and share similar frustrations about the impeding transformation of Parliament and provincial legislatures into municipality councils, I think a closer reading of the judgment shines a light on a path of electoral reform that is possible through court litigation by invoking the Constitution. Even though the court did not prescribe extensive electoral reform, the decision unfreezes the debate on electoral reform and opens a path of reform that is possible through the court as opposed to a path driven through the political process. 

Were South Africa‘s political process functioning in a way that showed it was in touch with the reality of the society it serves, it would not have taken the court to have to set the country on an electoral reform path. Having read the society and redefined the meaning of political representation in line with the evolution of the society, the court decided that the country has to reform its idea of representation in the current electoral system in line with the values of the society. This truth about our politics is not only visible to the court, but it also shines bright in the eyes of our politicians.

Lack of discipline within political parties and their susceptibility to capture by interest groups is one of the phenomenon that have reduced their importance as vehicles through which collective political goals are pursued. If political parties were coherent institutions with functional internal organisation structures through which they manage their members, the question of participation of independent candidates in politics would not arise. The case for independent candidates is strengthened by visible instances of internal rot of political parties and their increasing inability to mobilise for collective good.

If a political system is infested with decaying political parties, such a political system would not naturally open a debate on how to reform the electoral system in a way that would strengthen the voice of anything besides the party. If parties will not entertain electoral reform that would disturb the status, the court can nudge the country on a path of electoral reform. Under such circumstances, however, one has reluctant reformers. Since the political system never favoured electoral reform, this means that any attempt to undertake extensive reforms would have to be through the courts. Since the Constitutional Court has set a precedent that says it can set the country on electoral reform, this remains the only to achieve what the political system fails to resolve.    

The significance of the judgment therefore is not because it will suddenly awaken the drive for meaningful electoral reform within our political system. The judgment, however, shows that where the political system fails to engage critical issues such as electoral reform, the court will not shy away from setting the country on an electoral reform path, but only if someone knocks on the door of the court and humbly requests.

- Dr Ralph Mathekga is a political analyst and author of When Zuma Goes and Ramaphosa's Turn. 

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