Changing Places

The government's amendments to the Constitution's anti-defection clause will allow MPs and councillors to leave the party that nominated them without forfeiting their seats - under severely circumscribed conditions. The Loss or Retention of Membership of National and Provincial Legislatures Bill, recently approved by Cabinet, provides for two 15-day "window" periods in February and September, in which defection may be permitted if 10 per cent or more of a party wish to cross the floor and join another party. The first window will be allowed 15 days after the legislation is passed and there will be none in the year before or after an election.

Ostensibly, the anti-defection clause was intended to give effect to the principle that under proportional representation (PR) electors vote for a party and not for an individual candidate on a party list. The ANC also maintained that the clause would stabilise and consolidate parties in the fledgling stage of a new democracy. Maybe so. But all simple PR list systems place huge power in the hands of party leaderships, who can determine which individuals shall be on their lists and where in rank order they are placed. The anti-defection clause massively reinforces that leadership control. Not only is it a formidable deterrent to crossing the floor for reasons of conscience, it also gives party leaders power to expel dissident or recalcitrant party members.

The clause has suited a highly centralist organisation such as the ANC admirably. Even though the Constitution provides for legislation "within a reasonable period after the new Constitution took effect" to scrap the clause and to permit parties to merge or split, the government opposed a Democratic Party motion to abolish it. It was only in November, when the ANC concluded a co-operative agreement with the New National Party, that it hastily began to examine possible amendments to the clause. The politics in the present proposals revolve around the distribution of the remnants of the NNP. In particular the ANC is anxious to gain control of the Cape Town unicity, if only in coalition with the NNP.

Following their putative merger, the Democratic Party and the NNP fought the December 2000 local government elections under the banner of the Democratic Alliance and won the Cape Town unicity. However, the two parties fought the 1999 national elections as separate entities and have remained nominally separate in the National Assembly and provincial legislatures in order to avoid the consequences of the anti-defection clause.

The main question is whether there will be a massive exodus of former NNP members from the DA back to the Nationalist fold at the first opportunity. Assuming that the legislation will be passed during the present parliamentary session, that opportunity will occur 15 days later. Of the 107 nominally DA members in the Cape Town unicity, 37 are former DP members and 70 are former NNP members. If 24 or more of the latter move to the NNP they will be able to form a co-operative city government with the 77 ANC members, with a slender majority.

The ANC must hope that the amendments, which include the removal of the requirement for exact proportionality in party representation, will put it in a more favourable position to win outright control of both Cape Town and the Western Cape provincial legislature in the future. It was the juicy bone the NNP dangled in front of the ANC in their initial negotiations, which culminated in its exit from the DA. As an unnamed senior ANC member put it, the party's agreement to the amendment is "part of the ANC commitment to the NNP. It is in our own self-interest." (Sowetan, February 7, 2002)

If the amendments survive constitutional challenge, it remains to be seen whether the ANC will want to retain them once they have served their current purpose. The ANC chairman of Parliament's justice and constitutional committee, Johnny de Lange, regards the proposed tinkering with the anti-defection clause as an interim measure, "a mechanism to avoid the kind of political stalemate we see at the moment." (Sowetan, January 25, 2002)

He may have in mind future changes emanating from the multiparty commission, chaired by Frederik van Zyl Slabbert, which is to make recommendations for a new electoral system. Those could conceivably include the complete scrapping of the anti-defection clause. However, nearly a year has passed since the president announced the setting up of the commission. Inexplicably nothing has so far happened. Van Zyl Slabbert has reportedly said that he is yet to receive a letter of appointment, a list of members or the commission's terms of reference.