Why electoral reform slips through the grid

Summary - Our elections are free and fair but they are not democratic in that we do not choose the individuals we send to parliament, other than the party leaders. Voters in the April 2004 elections got two identical ballot sheets – one for parliament and one for the National Council of Provinces - each showing the faces of 20-odd party leaders. Thus most voters chose blindly regarding some 380 of the 400 people who would represent them. The reason is that we still have the crude closed-list proportional system that was introduced in 1994 because the Group Areas Act had made non-racial constituencies an impossibility. The country has changed immensely since then but the electoral dispensation has not, except for the introduction of floor-crossing, which has significantly and improperly favoured the ANC. The absence of constituencies is a serious flaw in our constitution. When Mandela left office in 1999 he called for a review of the matter but it was only three years later, in May 2002, that an Electoral Task Team (ETT) headed by Frederik van Zyl Slabbert was finally appointed. The ETT’s brief included deciding whether floor-crossing should be allowed. The ETT submitted its report in January 2003, setting out the recommendations of the majority of its members – multi-party closed-list constituencies based on existing municipal boundaries. However, ANC-aligned ETT members were pressured to reject constituencies in any form, and the team split 8-4. The cabinet did not properly engage the report and did not publish it nationally. In October 2004 it announced that it would deal with the electoral reform issue before the 2009 elections but would not be rushed as other matters had greater priority. And so we have ‘floor-crossing’ in ‘window periods’, when loyalties are scrambled, power is re-apportioned (mostly to the ANC), and the electorate has no say. Many voters feel betrayed. Every floor-crossing should trigger a by-election to test whether the voters still want the floor-crosser to represent them. But because we have no constituencies, we can have no by-elections (except of municipal councillors). The legislation that has enabled politicians since 2002 to distort the voters’ will by moving to parties for which they did not stand was not declared invalid by the constitutional court because of an omission: the 1996 constitution does not specifically enforce rationality on the electoral system with the same clarity with which it enforces rationality on legislation. Many believe the court has been inconsistent in its handling of this issue. In 1996 the court affirmed the constitutionality of the prohibition of floor-crossing in a pure closed-list system. However, when the UDM applied in 2002 to have the floor-crossing amendment declared unconstitutional, the court said that it was not legally competent to address the problem. If the constitutional court will not address the problem of unfairness to voters, who will? Certainly parliament doesn’t want to. Many MPs, now effectively appointed rather than elected, have no desire to endure the rigours of campaigning. But perhaps ordinary South Africans will sooner rather than later express their determination to be answerably represented. We should not accept a hierarchical electoral dispensation susceptible to manipulation as the natural order of things. In 1999, in an address to the SADC Electoral Commissions Forum in Dar es Salaam, Mbeki said: ‘[An electoral process] must enjoy the highest credibility possible among the people as being free, fair and honest, with its results being respected by all participants. This process must, of course, also include the compilation of a credible voters’ roll as well as the demarcation of constituencies according to fair and consistent criteria.' (Emphasis added.)

Constitutional South Africa has in its first ten years seen a failure in the real-life operation of the separation-of-powers theory. If you had early hopes that the interaction of the three arms of the state — legislative, executive and judicial — would bring about a rational electoral system, well, you are still waiting.

The 2004 April election was well organised, free and fair, but not democratic in that we did not choose the personalities that we sent to parliament, other than the leaders of political parties. We got two identical ballot sheets, each with the twenty-odd faces of party leaders — a sheet for the National Council of Provinces and a sheet for parliament. There were no parliamentary constituencies and one could not stand as an independent candidate for parliament. All except the most conscientious followers of the minutae of party political election lists chose blindly as regards some 380 of the 400 people who would actually sit in parliament.

This is because the three arms of government have not led us from the crude pure closed-list proportional system used in 1994, which could not be based on geographical constituencies because the Group Areas Act had made non-racial geographical constituencies an impossibility. We then voted a new nation into being and relied on national leaders, not local ones.

The country has changed immensely since 1994 but the electoral dispensation has not shifted at all, bar the advent of “floor crossing”. This practice, mixed with a pure party list PR system, has, within a mere seven months of 14 April 2004, significantly and improperly favoured the dominant party.1

Colin Eglin warned at the 1993 Kempton Park negotiations that “one should not underestimate the unwillingness of any assembly to change the rules by which it has been elected”. He could have added: “except, of course, where a massively dominant party sees an advantage in so doing.”

What we now have is clearly dangerous to any country — party leader-led centralism untempered by legislation covering internal party list-making procedures or by obligatory disclosure of party funding.

This bad situation is buttressed by our constituency-free electoral system, a serious and pivotal omission from our constitution. Of course, if a constituency system produced a similar or greater African National Congress (ANC) majority (as many predict it would) the one-party-dominant state would properly continue but all individual MPs would be answerable to voters, which is a vital line of defence against pseudo-democracy.

In handing over the presidency in 1999 Nelson Mandela called for further consideration of the relationship between our people and their representatives. President Thabo Mbeki for three years then talked en passant of the matter. In May 2002 home affairs minister Mangosuthu Buthelezi ended endemic delay in Mbeki’s formal appointment of his long talked-of “Electoral Task Team” (ETT) — unfortunately not a proper commission — headed by Frederik van Zyl Slabbert. Slabbert had been named by the president months before and had been waiting for the appointment with increasing frustration.

Slabbert’s credentials included his principled 1986 resignation from leadership of the white parliamentary opposition and his subsequent central role at early meetings with the ANC in exile, particularly the seminal 1986 Dakar conference organised by the Institute for Democratic Alternatives in South Africa (Idasa), of which he was director of policy and planning.

Slabbert knows the charged world of constituency politics, which we now so sorely lack. As young and as open-minded as any white political figure of the time he stood for the Progressive Party in Rondebosch in the 1974 general election and triumphed over the National Party representative Brian Bamford by 1 600 votes.

Slabbert says he only stood because Colin Eglin had “guaranteed” he’d lose. “The Progs offered me Rondebosch but Eglin said: ‘I’m not going to move Prog workers from Sea Point to Rondebosch, because I guarantee you’ll lose.” “In that case,” I said, “I’ll stand!”)

He won the seat for the PFP in 1977 and again in 1981. In 1979 he became leader of the opposition. His 1986 resignation on grounds of the irrelevance of a white parliament was unwelcome to his party and he briefly retired from politics. In 1987 he openly initiated (illegal) contact with the ANC.

To return to the new era: Peter Smith, Inkatha Freedom Party (IFP) MP since 1994, has been perhaps the most thorough political analyst of the history of this issue. He testified in an affidavit to the Constitutional Court in July 2002 on his understanding of the processes that preceded the impugned floor-crossing legislation:

In March 2001 the president announced his intention to appoint a task team under the chairpersonship of Dr Frederik van Zyl Slabbert to investigate and report on reviewing the electoral system in its entirety. For reasons that have never been explained, the president delayed effecting the actual appointment of the team. It was in fact Dr Buthelezi, in his capacity as minister of home affairs, who eventually appointed the task team in May 2002. The cabinet-approved terms of reference of the ETT, as announced by Buthelezi, were to formulate a draft electoral bill by the end of 2002 for submission to Cabinet and tabling in parliament. I was the liaison between the Inkatha Freedom Party and the ETT and attended the briefing where minister Buthelezi and Dr Slabbert announced the ETT’s terms of reference. They clarified that the ETT’s task includes deciding whether crossing of the floor should be allowed within the parameters of a new electoral system.2 [My emphasis.]

Slabbert took just eight months before handing over the ETT report in January 2003 to the relevant cabinet committee. The report included the papers of a national electoral conference held in Cape Town and funded (to the tune of more than one million rand) by the Konrad Adenauer Stiftung. Ministers, MPs from most parties, academics and journalists attended. The report set out what the ETT majority essentially settled upon — a plan for multi-party closed-list constituencies drawn up on the basis of existent municipal boundaries. This plan was extensively developed, with maps of the whole country, by Norman du Plessis of the Independent Electoral Commission (IEC), a constitutionally-created body, (see maps 1 to 4).

In spite of Slabbert’s efforts to get unanimity the team split 8-4.3 ANC-aligned ETT members were under pressure to reject constituencies in any form. Johnnie de Lange, MP, expressed the party line on the electoral system at the conference: “If it ain’t broke, don’t fix it.” But ultimately a majority opted for the Du Plessis plan. The outgoing Mbeki cabinet did not properly engage the report, and did not publish it nationally. The matter “would be addressed after the election”.

More than six months after that election, on 7 October 2004, the new Mbeki cabinet issued a statement that, yes, it would deal with the electoral reform issue before the 2009 elections but it would not be rushed — it had to prioritise delivery in other areas.

And so we have “floor-crossing” in “window-periods” (neither horrible metaphor appears in the constitution). The constitutional court approved what parliament did, but not how, at first, it did it.

The court in effect told the executive that there was no constitutional impediment to endorsing floor-crossing in a pure list system by ordinary legislation. The limited “reasonable” period for such specific amendment imposed by the 1994 interim constitution was, however, found to have expired. The ANC happily went back to pass the impugned legislation again, this time as an ordinary bill.

The April 2004 election, with its pure list proportional representation (PR) system came and went, and just seven months later we watched the effects of floor-crossing on our democracy — a scrambling of loyalties in parliament and in municipalities and provincial councils country-wide, such as the election proper had never seen.

In all this re-apportionment of power, mostly to the ANC, the voters played no part. ‘The people’, at any rate New National Party (NNP) voters, only ‘governed’ their MPs for seven months. Many voters say they feel betrayed by floor-crossing. They know, both viscerally and intellectually, that only by-elections triggered by every floor-crossing can test whether the voters still want the floor-crosser to continue as representative. But because we have no constituencies we can have no by-elections (except of municipal councillors elected to represent wards).

The constitutional court did not prevent nor declare invalid the legislation that has since 2002 enabled politicians to distort the voters’ will by moving to parties for which they did not stand.

All this flows from an omission. The 1996 constitution does not specifically enforce rationality on the electoral system with the same clarity with which it enforces rationality on legislation generally. (It was, for example, the specific conclusion that government policy on Aids was irrational that led, legally, to the celebrated constitutional court order in the Treatment Action Campaign case.)

Must we accept the looking-glass proposition that the method by which the country appoints and removes its public representatives is not a constitutional matter? Surely it relates centrally to how government is “constituted”?

The court, according to many (including Van Zyl Slabbert) has not been consistent in its handling of this issue. In September 1996, certifying the compatibility of the constitutional assembly’s (CA) new text of the constitution with the Kempton Park constitutional principles, the court declared the constitutionality and approved the logic of the (then ANC-supported) proposition that floor-crossing was not to be tolerated in a pure list system.

[The anti-defection clause in the CA’s new text, then under court examination] obliges members of a party who are elected by virtue of the inclusion of their names, to remain loyal to that party. That meets the expectations of voters who gave their support to the party. We cannot conclude that the anti-defection provision contravenes Constitutional Principle I.” (Par 183.)

So the court affirmed, in 1996, the constitutionality of the prohibition of floor-crossing in a pure closed-list system. True, this does not mean that allowing floor-crossing in a closed system is not constitutional. But it is clear that under the pure closed-list system which still pertains, the court’s 1996 argument that floor-crossing was not desirable under that system should still apply.

They clearly don’t. In the 2002 United Democratic Movement’s (UDM) case (an application to have the floor-crossing amendment declared unconstitutional), “The court” (the judges wrote as a body) had these stern and unhelpful things to say:

This case is not about the merits or demerits of the provisions of the disputed legislation [which introduced floor-crossing]. That is a political question and is of no concern to this Court. What has to be decided is not whether the disputed provisions are appropriate or inappropriate, but whether they are constitutional or unconstitutional. It ought not to have been necessary to say this for that is true of all cases that come before this Court. We do so only because of some of the submissions made to us in argument, and the tenor of the public debate concerning the case which has taken place both before and since the hearing of the matter.

It also declared that:

It is not disputed that the First and Second Amendment Act [the impugned amendments] were passed in accordance with the special majority prescribed by section 74(3) of the Constitution and the special procedures for constitutional amendments prescribed by sections 74(4) to (9). The constitutionality of these two amendments therefore depends on whether or not they fall within the scope of section 74(3). It is only if they do not that a challenge to their constitutionality can succeed. [My emphasis.]

Section 74 is purely procedural. The court rejected the arguments of the UDM (and the Democratic Alliance and the IFP) on the basis that it was obliged to act in the interests of justice and to test the rationality of electoral legislation and policy.

In layman’s language, unfairness to voters in a constitutional democracy is irrational. But the judiciary has seemingly declared itself not “competent”, in the legal sense, to address the problem. Who will? Parliament certainly doesn’t want to. Many MPs, now effectively appointed rather than elected, certainly don’t want to mount hustings personally. That’s difficult and a personal challenge. They didn’t get there that way.

But maybe South Africans will somehow prove sooner rather than later that we really want to be answerably represented. We want to be citizens, not subjects. And the left, one gathers, quite likes the local and populist smell of constituencies.

The following words by president Mbeki are from his September 1999 address to the Southern African Development Community (SADC) Electoral Commissions Forum in Dar Es Salaam.

The relatively wealthy, the educated and the powerful within our nations are a tiny minority, concentrated especially in the capital. Many see themselves having greater affinity with the former colonial power than with the villages from which they originate and where their extended families still live.

They accept assimilation into the culture, the language, the mores and society of the coloniser as a mark of progress and civilisation.

Though they see themselves as modern and superior, relative to the majority of the people, they and these masses have been socialised into acceptance of strictly hierarchical systems of government and authority.

The patriarchy, as well as traditional and colonial government, all portray the structuring of society into the proverbial “chief and Indians” as part of a natural order of things.

Like Mbeki, we should be concerned about how to change a fixed way of thinking about governance, but the mindset that now needs attacking is more modern, and specifically new South African. Colonial and apartheid dominance left powerful residual social characteristics but the biggest current threat is modern centrist one-party dominance. The new South Africa should not accept a hierarchical electoral dispensation susceptible to manipulation as “the natural order of things”.

The “natural order of things” should be that the chance of entry into the national political class by gaining local votes should be open to the politically gifted — both to those who want to represent a party and to those who wish to stand as independents.

Tony Voss’s splendidly brief arguments for constituencies are “(1) reputation and accountability (2) regional variety and local knowledge”.

And Mbeki said the following to all those African electoral commissioners in Tanzania:

[An electoral process] must enjoy the highest credibility possible among the people as being free, fair and honest, with its results being respected by all participants. This process must, of course, also include the compilation of a credible voters’ roll as well as the demarcation of constituencies according to fair and consistent criteria. [My emphasis.]

Endnotes
1 See the IEC’s website for statistics of floor-crossing:www.elections.org.za
2 The majority that supported multi-seat constituencies was made up of Dr Van Zyl Slabbert, Norman Du Plessis, advocate Rufus Malatje, Dren Nupen, professor Jorgen Elklit, professor Glenda Fick, Nicholas Haysom and Dr Wilmot James. The minority team members that supported continuance of the present dispensation were Pansy Tlakula, SS (Fanie) van der Merwe, Zamindlela Titus and Tefo Raditapole.
3 See reporting on this in the Sunday Independent “Separation of Powers”, 10 October 2004.