A chance to fix SA democracy with fresh electoral reform motion

JOHANNESBURG — This development below is sure to grab the interest of many a South African over the coming weeks. Former MP Dr Michael Louis is in a bid to change the Electoral Act to allow independent candidates to stand without the need for a political party. This, in turn, represents a further opportunity for changes in the Electoral Act, as explained in the article below. A private members motion is expected to happen in Parliament on Monday. It’s been pretty clear from the Zuma years that while we as Saffers laud our Constitution and democracy (and so we should when considering our history), there are still gaping, massive holes in our political system that make it way too easy for politicians to duck and dive, and totally escape accountability. A prime example is Mr Jacob Zuma himself – who for years laughed at South Africans while he fleeced taxpayers to fund and upgrade his lifestyle. If Zuma and politicians had to be held accountable by a more constituency-based system rather than hiding behind the group-think of their party and the PR system, perhaps Nkandla, State Capture and the destruction of SARS – would at the very least – have been more difficult for crooked politicians to effect. – Gareth van Zyl

By Dr Michael Louis*

Winds of change – SA electoral reform

There is a great mood of renewal in our country, and a profound sense that South African needs to invigorate its economy and do better in serving our people with dedication and selflessness. In his first address to parliament, President Cyril Ramaphosa quoted from the great Hugh Masekela song Thuma Mina – send me.

In this spirit of re-examination and re-appraisal, there is one change that in my opinion that could make a massive difference; the re-examination of the electoral code. South Africa’s electoral system was largely shaped by the immediate dynamics of the moment the constitution was finalised. Recall, the ANC had set a deadline for the first election to take place because they were sick of the stalling tactics of their opponents. The result was that the simplest possible electoral system was quickly fashioned as the deadline approached.

That system is the one we have today; a slightly modified proportional representation system. What it means is that the votes are cast, they are tallied, and the seats in parliament are divided in proportion to the votes. What, you may ask, could be more fair?

Yet, over the years, it has become clear to all parties that there are major flaws in this system. The contest for seats in parliament is rooted in political parity, and consequently is inadvertently removed from the purview of voters. Voters know which party they are voting for, but they know very little about the people who are representing them. Legislators are first and foremost beholden to the party, and not to voters directly. As a result, the legislative process, notwithstanding recent improvements, has become a rubber stamp rather than a forum for debate.

This problem was distinctly visible during crisis moments, like the debate over the Public Protector Thuli Madonsela’s report on President Jacob Zuma homestead of Nkandla. It was clear to me that the popular will of the people supported the Public Protector’s position that the president should be required to pay for the building of the homestead, including a majority of supporters of the ruling party. But without the nexus of accountability between voters and parliamentarians, ANC MP’s voted against the recommendations of report; it required a judgement of the Constitutional Court to impose the people’s will.

Read also: How SA’s ‘pressure-cooker’ proportional representation system burns us

The second major flaw is related: instead of parliament and the executive adopting distinctive roles, the proportional representation system tends to conflate the executive and the legislature, and puts more power in the hands of the executive than would normally be the case in a functioning democracy. The separation of powers works best when the executive proposes legislation and the legislature inspects it, tests it, and holds the executive to account if it fails. As proportional representation has unfolded in SA, the function of the executive and the legislature have merged, and parliament is failing to perform one of its main functions; to hold the administration to account in the name of the people of the country.

It must be said that the PR system does have advantages too. The most important among these is that no vote is lost. The result is that small political parties are represented in parliament, and consequently, the voices of all constituencies are heard. This was an important motivating factor in deciding on the system during the constitutional negotiations, and because many small parties were represented at the talks, this system appealed.

Read also: Iswamo Kapalu: Herds of State – party before country. Time for electoral reform.

All these issues have, of course, been examined in detail, in the Van Zyl Slabbert Commission report tabled way back in 2003. Those proposals however are, in my opinion, on the verge of a major rebound, as South Africa considers what went wrong over the past decade.

The process was begun with a 18 month legal process starting at the Constitutional Court by Dr. Michael Louis, a previous Western Cape MEC and member of Western Cape Legislature. This was followed by a legislative process with the leader of the Congress of the People Mosiuoa Lekota proposing in parliament a week ago that SA should, among other things, change the electoral system to ensure greater accountability to constituencies and to allow for the direct election of the president, premiers and mayors. Lekota is currently in the process of this Parliamentary sitting, proposing a private member’s bill to advance these ideas. He is joined by Rev Kenneth Meshoe, President of the African Christian Democratic Party, in this private member’s bill. Normally, the suggestions of a member of parliament could easily be brushed aside by the ruling party. But this case is more complicated because there is currently a conflict between Section 19 of the constitution and the Electoral Act, and the Constitutional Court has instructed parliament to resolve this conflict. Section 19(3) requires that every adult citizen has the right to (a) vote in elections for any legislative body established in terms of the Constitution and to do so in secret; and (b) stand for public office and, if elected, to hold office. However, the Electoral Act only allows citizens to stand if they are members of a political party. Instead, Mr Lekota’s proposal can allow for independent candidates and suggests that since SA must review its electoral law, this is an apposite moment to fix that sticking point once and for all.

There are complications involved in this process. The Van Zyl Slabbert Commission essentially proposed a mixed system, reminiscent of our current local government elections, except weighted more heavily toward direct representation and proportional representation. Without registered domicile of voters, it is possible for voters to defraud the system by voting in regions away from their actual homes. However, the system already involves this risk, since voters can shift provinces if they are that way inclined.

Whatever the case, it is crucial that South Africans seized this issue. We have an opportunity now to make important change to our electoral law that would make a important difference to the well being of our of citizens and our system. We dare not miss this chance.

  • Dr Michael Louis is a former MP and member of the Western Cape provincial legislature.
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