Valli Moosa | Electoral Bill is defective, insults the electorate and ignores the Constitution

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The electoral reform bill discards the system of proportional representation as large numbers of votes for independent candidates will be discarded.
The electoral reform bill discards the system of proportional representation as large numbers of votes for independent candidates will be discarded.

One of the architects of the Constitution, Valli Moosa, in a recent Ahmed Kathrada Lecture said that when voters cannot get what they want because of the electoral system, democracy itself is placed at risk. He was reflecting on the current electoral amendment bill, which will now be heading to the National Council of Provinces after Parliament adopted the bill on Thursday. Here is an edited version of the lecture which was delivered in Johannesburg last weekend. 

On 27 April 1994, the first photographs of the voting stations started appearing.

It showed South Africans patiently waiting in long and winding lines. Patient, but with determination. Patient, but triumphant. Patient, but with heads held high.

Among those in line stood the daughter of a man murdered in John Vorster Square, the mother of a 15-year-old child who was held in detention without trial, the brother of a woman who had forsaken it all and joined the people’s army, the father of the child that was shot in cold blood during the Soweto uprisings, the loved ones of Steve Biko, of Imam Haroun and Neil Agget. They walked out of the voting station with the black smudge on their fingers held high. The smudged thumb chanted: freedom, freedom, freedom at last!

On that day, South Africans were overcome with emotion. A tear in the eye and a lump in the throat, even for the most hardened among us. 

Even today, after all these years, pictures of our brothers and sisters lining up to vote remains vivid in the mind's eye. We are moved by the images of 27 April 1994 because of what the right to vote and universal adult suffrage means to us. Because of the place it occupies in our hearts and minds. This fundamental human right is embedded in the DNA of this nation. South Africans have fought long and hard for the right to vote.

Adoption of the Freedom Charter 

In 1955 in Kliptown, the Freedom Charter was adopted. The very first aspiration in the Charter reads as follows: "The People Shall Govern! Every man and woman shall have the right to vote and to stand as a candidate for all bodies which make laws." 

It does not say: every man and woman shall be allowed to vote. It says: every man and woman shall have the right to vote.

Soon after the adoption of the Freedom Charter, the apartheid regime unleashed brutal repression that culminated in the Sharpeville massacre. The darkest years of the freedom struggle followed.

On 16 June 1976, the youth of Soweto said, "enough is enough!" and called on the people to rise up. What followed was a mass uprising whose sustained intensity over the next 14 years is unsurpassed in modern history. The mass uprising culminated in the 1990 agreement by the regime to come to the table and negotiate the terms on which the hated system of apartheid is dismantled and in its place is established a united, democratic, non-racial and non-sexist South Africa.

Many ideological outlooks and a rich variety of viewpoints made up this mass movement. The golden thread that united this great motherland front for freedom was encapsulated by the words "Amandla Ngawethu!" Power to the People! The right to elect a government of your choice.

"Amandla Ngawethu!" rang out a thousand million times in schools, colleges and universities, in factories and mines, in mosques, temples and churches, and from behind the prison walls. The freedom struggle was very much about the right of people to choose their own government.

We are moved by the images of 27 April 1994 because of what the right to vote and universal adult suffrage means to us.

WATCH | Struggle veterans recall casting their votes in '94: 'It was like a miracle'

When we design a new electoral system, we are giving meaning to the cherished and hard fought right to vote. It is a weighty matter that deserves detailed and serious attention.

Let's look at what the Constitution says. Section 19 of the Bill of Rights says: "Every adult citizen has the right to vote in elections for any legislative body. Every adult citizen has the right to stand for public office."

This right is further elevated to one of the values on which our nation is founded. On the first page of the Constitution in Section 1, the Constitution says: "The Republic of South Africa is founded on the following values: Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government to ensure accountability, responsiveness and openness."

So when we decide on a new electoral system, we carry the weight of the Freedom Charter, the weight of our beloved Constitution, the weight of generations of struggle and the weight of the lives that were sacrificed. But perhaps most important of all, we carry the heavy weight of the generations to come, the ones to whom we have the biggest responsibility.

Electoral reform treated as an administrative issue 

One of the big challenges of the day is that the leadership of the DA and the leadership of the ANC, the party I belong to, are failing to give serious attention to this very serious matter. The matter of electoral reform is being dealt with as an administrative issue in a narrow self-interested manner.

Unfortunately, it is not being dealt with as a serious human rights-based constitutional question that has to give expression to an aspiration that runs through the very fabric of our nation.

But why the present heightened interest in electoral reform among many of us?

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Of course, the debate was nudged on by the Constitutional Court judgment that found the current act unconstitutional. But actually, the current interest in electoral reform is also prompted by other developments. 

There is a growing distance between Parliament and the people. Voters feel that they are simply ignored by MPs. The conduct, performance and ethical values of many MPs makes them undeserving of such high office.

If voters had the choice, many MPs would not end up in Parliament. There is just a general lack of accountability. Then there was the failure of MPs to bring to book a president and executive who stridently promoted state capture and looting. There is a growing feeling among citizens that their votes do not matter.

We face a serious risk of voter apathy. And, we face an even greater risk that as more and more voters feel unrepresented, they turn towards undemocratic means.

Why did we land up with the current system?

Before I go any further, I wish to briefly turn to the factors that resulted in the current pure party-list system. Let's take our minds back to 1993. It was now more than three years since the release of Nelson Mandela and the unbanning of the ANC.

In those three years, the apartheid regime was further weakened significantly. In fact, it was in a rudderless state. The ruling bloc was splintered. The National Party government was holding onto power by a thread. The regime was on an unstoppable downward spiral.

The biggest danger South Africa faced was not that the regime would refuse to agree to a negotiated transfer of power, but that the regime would implode in a disorganised manner, resulting in utter chaos.

The negotiations between Mandela's team and FW de Klerk's team were not one between equals. By 1993, FW de Klerk represented almost nobody, whereas Mandela was already regarded as the country's leader. The negotiations, at that stage, were about nothing more than terms on which the regime would surrender its power to a democratically elected government.

After the assassination of Chris Hani on 10 April 1993, the danger of an outbreak of uncontrollable chaos loomed large. The people were losing patience. The only sensible way forward was to determine the date on which the regime would hand over power. South Africa could wait no longer.

In June 1993, it was decided that democratic elections for a Constitutional Assembly (which would also be the Parliament) would be held on 27 April 1994. This was a mere 10 months away. There was no voters' roll. There was no common ID. Millions of South Africans living in the so-called TBVC States were declared foreigners. There were no demarcated constituencies. No provinces as we now know them. African townships were outside the boundaries of municipalities. There was no possibility of demarcating constituency boundaries in a manner that would be fair.

Under the circumstances, and because the revolution was marching on relentlessly, a temporary system had to be put in place.

In November 1993, a mere six months before the elections, an agreement was reached between the parties on the electoral system to be used. This was meant to be a temporary electoral system, especially designed for the first democratic election. It was conducted under apartheid rule.

It was the common understanding that the democratically elected Parliament would be able to give proper consideration to determining a better and more permanent electoral system, one that links MPs to voters in a more direct manner. If there is any doubt about this let’s look at the words of the founding father of our democracy. Towards the end of his five-year term, on 26 March 1999, President Mandela delivered his last speech to Parliament. 

President Mandela was full of praise for the achievements of the first democratic Parliament. He said of its work, and I quote, "This is a record in which we can take pride". And then, he immediately went on to say: 

But even as we do so, we need to ask whether we need to re-examine our electoral system, so as to improve the nature of our relationship, as public representatives, with voters!

As it turns out, many MPs got into Parliament by riding the coat tails of a popular leader or that of the popularity of the party. Such MPs had no incentive to create a system which would require them to face voters directly. One would be forgiven for believing that the biggest fear of the MP is to explain to voters why he or she deserves to get the vote.

There are certain essential characteristics, qualities and features of the South African democracy that must be properly understood when we consider an electoral system:

  • In the opening lines of the Constitution, it says government must practice "openness, accountability and responsiveness";
  • It must be a system of proportional representation (Section 46 of the Constitution). In other words, every vote must count. The electoral system should not distort voter preference as is the case, for example, in the UK;
  • The voting procedure and the method of counting should be understandable to the ordinary citizen in order to guarantee legitimacy to the outcome;
  • Citizens must actually participate in elections. In other words, a high voter turn-out is essential to the success of the democratic process;
  • There should be more than one legitimate political party. In terms of Section 1 of the Constitution, one of the values of South Africa is "a multi-party system of democratic government". Political parties are essential to the functioning of all modern democracies;
  • Ours is a parliamentary system. One in which Parliament elects the president from among its members and one in which the president accounts to Parliament. This is entrenched in the Constitution and for a good reason.

So in our criticism of the current Bill, it is not being proposed that there should be a directly elected president, or that there should no longer be proportional representation, or that political parties should be done away with.

A Parliament composed principally of independent members is unworkable and a recipe for ungovernability. It can lead to a paralysis of decision making, incoherence in policy, frequent changes in who forms the government, and extreme short-termism. And, let's be frank, there will be a wholesale buying and selling of MPs. I mean bribing MPs to vote for or against something.

Of course, the current attraction many have to the idea of independent candidates is the result of the shameful conduct of the leaders of our political parties, none more so than the conduct of the ANC.

This conduct is characterised by a lack of accountability, lack of responsiveness, collective defence of wrongdoers, wrongdoers placed on party lists election after election, and Members of Parliament caring nothing about public opinion. Members do everything to impress the party leadership and care absolutely nothing about anybody else, certainly not the voters.

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But if political parties are the lifeblood of our democracy, then the political party as an entity should be governed by law. A gang of drug dealers or a private business entity or an autocratic foreign government should not be able to disguise itself as a political party. There is no equivalent in politics to the King Code of Good Governance and the Companies Act that regulates business. There is no equivalent in our politics to the comprehensive labour laws that govern trade unions.

The most powerful public entity in society – the political party – is largely unregulated. Our parties are known for not practising good governance. This is a major contributor to the growing antipathy towards political parties.

One piece of regulation, the Political Party Funding Act that requires parties to reveal their sources of funds, is being resisted by the ANC and DA. They have already made a secret pact to repeal the most important elements of that Act.

Let me make it clear. Our political parties are an important national asset. They are a vital component of our democracy. They bring it to life. They make it illustrative. They give it the passion and drama it deserves. They mobilise the masses into participating in the democratic process. They ignite the imagination of the media.

But let me make it even clearer. We are in trouble if our political parties obfuscate their internal processes, spurn public opinion, think nothing of placing persons of disrepute in leadership, are funded by proceeds of theft, captured by one or two large donors, do not require their elected representatives to ever have to answer to the voters.

Voters will lose confidence in the system

The citizens of the Republic will turn their backs on political parties. They will lose confidence in our democratic order. Many will simply be alienated from the political process.

How often do you not hear the completely misguided but fully understandable refrain: they are all the same, nothing will change, and my vote does not count?

If our major political parties continue to disempower citizens and care absolutely nothing that we face the risk of continued alienation of the people from the democratic process, they risk being discarded by voters.

Taking this into account, the following conclusions can be made about the current Electoral Act Amendment Bill:

The Bill attempts to accommodate independent candidates, without changing the current pure party-list system. But the current system was specifically designed to accommodate only political parties. So they are putting a square peg into a round hole. The result is an irrational piece of legislation.

The bill wants us to stretch the imagination by treating the province as a constituency.

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The proposed system constitutes a disaster in waiting on several grounds:

Firstly, it is a completely new electoral system not backed up by any literature or analysis. Not a single party, including the majority party, has published an analytical paper explaining the wisdom of the proposed new electoral system. The proposed system does not exist anywhere in the world – perhaps for good reason. Without any political analysis and without any mathematical analysis, the risk of unintended consequences is very high.

Secondly, it violates the constitutional requirement of proportional representation. Votes cast for independent candidates above a certain quota are simply discarded – removed from the count. Gone is the now long-held strength of our electoral system that "every vote counts".

Thirdly, it is so complex and complicated that hardly anyone in the political leadership of our country seems to understand it. I have personally spoken to a number of them. Not only are they unable to explain the thinking behind the proposed system, but many also have no knowledge of it!

It would be safe to say that most ordinary members of the EFF, DA and ANC have not been consulted on the proposed system.

A system shrouded in mystery provides fertile ground for Trump-like claims of being cheated.

Exceptionally long ballot papers 

Fourthly, the principle of one person, one vote of equal value is discarded. A voter can have a choice to either vote for an individual candidate or for a party list. If the voter puts an "x" next to the name of an independent candidate, she gets to influence the filling of one seat in Parliament. If the voter votes for a party list, she gets to influence the filling of up to 80 seats.

Fifthly, in this complex system, the name of every independent candidate from anywhere in the Eastern Cape province (as an example) and each political party, will feature on one ballot paper. If the constituency is to be as large as a province, the ballot paper will run into many pages.

In the 2021 local government elections, there were a total of 11 237 registered candidates in the Eastern Cape. Even if a mere 10% of these run as independents in the national elections, there could be over 1 000 independent candidates in the Eastern Cape. Imagine the size of the ballot paper!

To "solve" this problem, the qualification requirement for independent candidates is so onerous that it undermines the constitutional right that "every citizen has the right to stand for elections".

But, most irrational is that such onerous requirements apply only to independent candidates and not to candidates appearing on the list of a political party.

In a free election, the voter has the right to choose between one or other party and, between one or other candidate. This Bill, incredulously, gives the voter the "option" of choosing between a single candidate and a party list of many candidates.

How the Bill's drafters think this is rational boggles the mind. The Bill discards the system of proportional representation as large numbers of votes for independent candidates will be discarded. The result is a risk of voters feeling cheated.

When voters cannot get what they want because of the electoral system, democracy itself is placed at risk. The complex and convoluted system in the Bill is the result of the mortal fear MPs have of direct accountability to voters. They seem to fear nothing more than to be judged directly by the people.

The Bill before Parliament is seriously defective. It is shamefully cynical of the Constitutional Court order, and, it insults the electorate. It does not pay heed to the good counsel of President Mandela. The Bill is not in keeping with the spirit and letter of the Constitution. It is inconsistent with the Freedom Charter. It ignores that rallying call of the Freedom Struggle: Amandla Ngawethu! 

- Valli Moosa was one of the architects of the Constitution. He also served as Minster of Constitutional Development under President Mandela. He was a leader of the Mass Democratic Movement in the 1980’s and served on the National Executive Committee of the ANC from 1990 to 2009.

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