Floor-crossing adds new muscle to ANC

The recent floor-crossing period has placed the ANC in a more powerful position than ever. The previous system, which prohibited floor-crossing, had two great advantages. Firstly, each party’s share of seats in parliament was proportional to the percentage of votes that it received; secondly, the ruling party was prevented from poaching MPs from smaller parties and thereby gaining majorities it hadn’t achieved electorally. The disadvantage was that it gave enormous power to party leaders and created a strong incentive for representatives to adhere to the party line. The floor-crossing legislation eroded the advantages while doing little to remedy the defect. The defection period gave the ANC the two-thirds majority it narrowly missed at the last election, as well as a majority in the Western Cape. The party also nearly won control of KwaZulu-Natal. There were no defections from the ANC at either national or provincial level, and at local level the ANC gained six councillors for every one it lost. This was predictable, as the ruling party is the major beneficiary of floor-crossing in any secure one-party-dominant regime. The reason is simple: representatives who defect to smaller parties risk losing their seats, whereas those who defect to the ruling party can always be accommodated somewhere because of the party’s control over state patronage. This natural advantage is reinforced by the terms of the floor-crossing legislation, which states that following the initial defection periods, a 10 per cent threshold will apply. Thus a single member of any party with fewer than ten MPs may defect, but a bloc of at least 27 MPs would have to leave the ANC. There is little incentive for a defector to the ANC to represent the interests of his electorate once he has crossed over: he immediately falls under ANC party discipline, and his chances of re-election depend on where party bosses place him on the list. Thus the floor-crossing legislation has given majorities to the ANC that it was denied by the electorate, while doing little to erode the power of the ANC leadership over its caucus. Indeed, the ANC revised its constitution recently to tighten its hold over members. The likely result is a further shift of authority away from the constitution and to the ruling party.

In Greek mythology the gods had condemned Sisyphus to an eternal cycle of rolling a boulder up the hill, only to have it roll back down again. Opposition in one party dominant regimes like South Africa’s often seems to be equally futile labour. The close of the recent floor crossing period has seen many of the attainments of the opposition (limited as they were) rolled back, and the ruling African National Congress (ANC) placed in a more powerful position than ever.

The previous system, in which floor crossing was prohibited, had two great advantages for South Africa’s democracy. The first of these was that it accurately translated the percentage of the vote a party received from the electorate at the ballot box into its share of seats in parliament. The other was that its anti-defection clause prevented the ruling party from poaching MPs from smaller parties and thereby gaining majorities it could not necessarily achieve electorally. As the Constitutional Court noted in 1996, if floor crossing “were permitted it could enable the governing party to obtain a special majority which it might not otherwise be able to muster and which is not a reflection of the views of the electorate”.

The great weakness of this system though, was that it strengthened the power of the party organisation over its public representatives. In theory an MP would lose his or her seat if expelled from the party (although this is quite hard to do in practice). More importantly, the fact that the party leadership determined the order of the list at election time created a powerful incentive for parliamentary representatives to adhere to the party line. In the case of the ANC, these formal powers were overlaid by internal party rules — acquired from ‘democratic centralism’ — which deprived its public representatives of any autonomy and turned them into little more than transmission belts for the decisions of the party centre. The power of the ANC leadership was further strengthened by its control over appointments to senior positions in the executive, legislature and state, and its ability to re-deploy party members from one sphere of government to another at will.

The peculiar achievement of the floor crossing legislation as adopted and amended by parliament, and sanctioned by the Constitutional Court, is that it eroded these advantages, while doing little to remedy its central defect. The defection period at national and provincial level, which began at the end of March and ended two weeks later, gave the ANC two of the three political domains denied to it by the voters in the 1999 election, and almost gave it the third.

Nine MPs crossed over from the United Democratic Movement (UDM) to the ANC in the national assembly, giving it the two-thirds majority it narrowly missed at the last election. In the Western Cape the ANC acquired an absolute majority as four New National Party (NNP) MPLs crossed over. In KwaZulu-Natal the ANC gained three defectors, giving it a plurality, and depriving the Inkatha Freedom Party (IFP) and Democratic Alliance (DA) of their combined majority. Were it not for the Constitutional Court sending back the relevant legislation last year — leaving the initial defectors in the KwaZulu-Natal legislature to the ANC out on a limb — that province would have fallen as well.

There were no defections from the ANC at either the national or provincial level. The pattern was very similar during the defection period at local government level last year, when the ANC gained 107 councillors but lost only 18.

The fact that the ANC was the major beneficiary of floor crossing was entirely predictable, as it is consistent with the experience under other one party dominant regimes. During India’s long period of Congress party hegemony, the opposition parties that were able to survive defections to, or absorption by, Congress were tightly disciplined and ideologically driven. In Malaysia, the ruling United Malays National Organisation (UMNO) was able to gain control of one of the few provinces outside its control in 1994, by engineering mass defections from the opposition party that had won the election only three weeks previously. In this context, the DA and NNP support of this legislation (particularly as it applied to national and provincial level) had a startling resemblance to turkeys voting for Christmas.

Under the new system, public representatives who defect to a small party, or from one small party to another, are always vulnerable to losing their seat if they are not following the voters, or the voters do not follow them. This is another reason why there are unlikely to be many defections from the ANC for as long as its majority seems secure. But the same does not apply for those who defect to the ruling party. It is very easy for the ANC to accommodate defectors: it has a large number of seats to fill, and it can always make space by deploying existing MPs to other levels of government, the public service or parastatals. Indeed, in terms of the legislation, it could simply give the defector a diplomatic posting to some tropical paradise and pocket the seat for itself.

The natural advantage the ANC possesses through its status as dominant party — and its control over state patronage — is further reinforced by the actual terms of the floor-crossing legislation. Following the initial defection periods, a ten per cent threshold will apply, making it far harder to defect from the ANC than from a small opposition party. Under these rules, a single member of any of the parties with less than ten MPs could defect. But at least twenty-seven MPs would have to conspire to defect (as a bloc) from the ANC, with  all the attendant risk of exposure and expulsion if the attempt were to fail.

There is little incentive for a defector to the ANC to represent the interests of his electorate once he has crossed over. For from the moment a defector joins his new party, he falls under its discipline, and his chances of retaining his seat at the next election become wholly dependent on where he is placed on the list by its party bosses. There is also no real mechanism by which aggrieved voters can make such defectors to the ruling party answer for their actions either. New elections provide no real remedy: such voters can, at best, roll the boulder up the hill again, vote for the same party they did last time, and restore the status quo. But about the only way in which they can hold a defector personally to account is by throwing a brick through his window.

Thus, the floor crossing legislation has given the ANC majorities it was denied at the last election and further fragmented the opposition, while doing little to loosen the hold of the ANC leadership over its parliamentary caucus. Indeed, the ANC altered its constitution in December to further tighten the grip of the leadership over its members and to close down any residual space for dissent. The new rules state that "all members and public representatives of the ANC, without exception" are subject to party discipline, and must abide by the decisions and policies of the party. The amended constitution also gives the party leadership new instruments of control: it mandates the establishment of “disciplinary committees” at all levels of the organisation, and empowers the National Executive Committee to establish “an appropriate investigative capacity” within the party, to probe complaints against members.

The likely result of this combination of more rigid party discipline and greater ANC hegemony, is yet a further shift of real authority away from the constitution (and constitutional structures) to the ruling party. The ANC's attainment of a two-thirds majority greatly diminishes the status of the Constitutional Court — for it is the party that now has the final say on constitutional matters. If the court strikes down legislation, the ANC now has the choice of altering the law to make it comply, or changing the constitution. The ANC may not need to wield this power overtly as mere possession could do much of its work for it. It will make recourse to that court by injured parties less attractive, and it may increase the (already considerable) reluctance of the court to rule against the government.