Electoral Reform: Constitutional Constraints On The Design Of Our Electoral System

Introduction

This brief is part of a series considering the implications of the Constitutional Court’s order in New Nation Movement[1] for electoral reform in South Africa. This brief will discuss the constitutional constraints imposed on Parliament as it undertakes the electoral reform process.

Constitutional Constraints On Electoral Reform

The Constitution provides that the electoral system regulating national and provincial elections must be prescribed by national legislation.[2] It follows that the electoral system is “a matter that lies peculiarly with Parliament’s constitutional remit”.[3] And that Parliament has the “constitutional authority and duty” to design the electoral system.[4]This leaves the details of our electoral system to Parliament.[5]

The “merits or demerits” of a particular electoral system constitute “a political question” of no concern to courts.[6] It is for this reason that the Constitutional Court in New Nation Movement refused to comment on the arguments raised by parties concerning the desirability of a mixed electoral system.[7] The Court said: “The pros and cons of this or the other system are best left to Parliament which . . . has the mandate to prescribe an electoral system.”[8]

Although Parliament has a wide latitude with respect to the design of our electoral system, there are important constitutional constraints imposed on Parliament. The Constitutional Court has made it clear that Parliament’s chosen electoral system must be compliant with the Constitution.[9] This is because the Constitution is our supreme law.[10] Courts are enjoined to vindicate the supremacy of the Constitution by declaring any law inconsistent with the Constitution invalid to the extent of its inconsistency.[11]

The Constitution imposes constraints on the Parliament as it undertakes the electoral reform process in a number of important respects. First, the Constitution provides some special requirements for our electoral system. Secondly, Parliament must comply with the principle of legality in amending the legislation prescribing the electoral system. And thirdly, the design of the electoral system must not unjustifiably infringe any constitutional rights or undermine any constitutional values.

Special Constitutional Requirements

Sections 46(1) and 105(1) of the Constitution impose certain constitutional requirements for the electoral system regulating national and provincial elections. Most pertinently, the Constitution requires that members be elected to the National Assembly and the Provincial Legislatures in terms of an electoral system that “results, in general, in proportional representation.”[12] This requires that the electoral system yields outcomes in which there is proportionality between the votes received by a political party and the number of seats that it receives in the legislature.[13]

Our current electoral system is highly proportional – resulting in near perfect proportionality between votes and seats.[14] It has been widely recognised as one of the most proportional electoral systems in the democratic world. However, this system was not constitutionally entrenched beyond the first election under the Constitution.[15]The Constitution implicitly recognises that there are a variety of electoral systems that will yield proportional outcomes. It is not prescriptive as to which electoral system should be adopted.[16]

In New Nation Movement, the Constitutional Court accepted that proportionality may come in different forms in holding that independent candidates are consistent with proportional representation.[17] The Court pointed to the mixed electoral system for local government, combining proportional representation and ward representation, as one which results, in general, in proportional representation.[18]

Although a variety of electoral systems may comply with the constitutional requirement of proportionality, an electoral system that leads to an unacceptable level of disparity between a party’s share of the vote and its seats in the legislature will be unconstitutional. However, the level of disparity that would fall outside of constitutional bounds has not yet been pronounced upon.

Nevertheless, our history points to the sort of perverse outcomes that the Constitution seeks to avoid. South Africa’s constituency-based single member plurality system, which was in place prior to democracy, regularly rewarded the National Party with a dramatically disproportionate number of seats in comparison with its share of electoral support.[19] The inherently disproportional nature of the system was most clearly demonstrated by the 1948 election in which the Nationalist coalition[20] came to power despite losing the popular vote.[21] The continued disproportionality ratio between votes and seats in subsequent elections allowed the National Party to entrench its electoral dominance.

The Principle Of Legality

The rule of law is a founding constitutional value.[22] It encompasses the principle of legality, which bars arbitrary or capricious exercises of public power.[23] The principle of legality has two elements. First, there must be a rational relationship between the means and the end sought to be achieved. Secondly, the end sought must be a legitimate government purpose. Legality is a threshold enquiry which precedes an enquiry into rights infringements [24] and which has been described as the lowest level of constitutional scrutiny.[25]

In New National Party, the majority of the Constitutional Court held that Parliament is constrained by the principle of legality in determining the details of the electoral system. It held that there must be a rational relationship between the electoral scheme adopted by Parliament and the achievement of a legitimate government purpose.[26] The absence of a legitimate government purpose or of a rational relationship between the scheme and that purpose will result in the scheme being unconstitutional.[27]

In a dissenting judgment, O’Regan J contended that a stricter standard of scrutiny should apply to the legislative provisions prescribing the electoral scheme.[28] O’Regan J argued that Parliament must act reasonably in the regulation of elections.[29] This, she contended, is because—

“[t]he right to vote is foundational to a democratic system. Without it, there can be no democracy at all. What is more the right cannot be exercised in the absence of a legislative framework. That framework should seek to enhance democracy not limit it.”[30]

The majority’s rejection of O’Regan J’s stricter level of scrutiny stemmed from separation of powers concerns. In the majority’s view, “[d]ecisions as to the reasonableness of statutory provisions are ordinarily matters within the exclusive competence of Parliament” and may only be enquired into by courts where a constitutional right has been infringed.[31]

However, the majority’s approach has been widely criticised as being overly deferential to Parliament.[32] While separation of powers harms are a matter of legitimate concern, O’Regan J’s stricter level of scrutiny would only apply to legislative measures taken to facilitate the exercise of political rights intertwined with the democratic process. Stricter scrutiny may be appropriate in these narrow cases to protect and enhance our democracy.[33] O’Regan J’s approach may also offer a means of counteracting the pathologies arising from the electoral dominance of the ruling party and the concomitant lack of electoral accountability.[34]

Constitutional Rights

The electoral system must not unjustifiably limit any of the rights enshrined in the Bill of Rights.[35]If a legislative provision prescribing an aspect of the design of the electoral system limits a constitutional right and the limitation cannot be justified, it must be declared inconsistent with the Constitution.

The first step in adjudicating a rights-based constitutional challenge is to determine whether a constitutional right has been limited. This can be complicated where the measure complained of is meant to facilitate the exercise of a right. Rights-based complaints about the design of the electoral system give rise to this complication. This is because the electoral system is meant to facilitate the exercise of a number of political rights enshrined in section 19 of the Constitution. These include the right to make political choices, the right to free, fair and regular elections, the right to vote and the right to run for and, if elected, hold office.

In New National Party, the Constitutional Court considered when a legislative measure designed to facilitate the exercise of the right to vote would, in fact, limit that right.[36] The Court concluded that this would be the case if those who desire to exercise the right to vote are unable to do so even though they “act reasonably in pursuit of the right”.[37]In Richter, the Constitutional Court explained that in determining what would constitute reasonable steps in pursuit of the right to vote, courts should bear in mind “both the fact that the process of voting inevitably imposes burdens upon a citizen as well as the important democratic value of fostering participation in elections”.[38] The design of the electoral system must, therefore, facilitate the exercise of political rights without imposing unreasonable burdens on citizens.

The second step, which is reached only if a limitation of a right is established, is to determine whether the limitation is in terms of a law of general application and is reasonable and justifiable.[39] The first hurdle of justification will often be easily passed where a limitation results from the design of the electoral system, since the legislation prescribing the electoral systems constitutes ‘law’.[40]

The second hurdle, which requires that the limitation must be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”, will present more of a challenge. The limitation of a right calls for higher standard of scrutiny.[41] A court must enquire whether the purpose sought to be achieved by the measure is proportional to the infringement of the constitutional right. If the relationship is disproportional or there are less restrictive means that could achieve the same purpose, the measure will not pass constitutional muster.[42]

The Constitutional Court carefully scrutinises the justifications put forward for the limitation of political rights. In NICRO, Constitutional Court emphasised that where the State sought to disenfranchise a group of citizens[43] for policy reasons, it had to provide sufficient information for the court to assess and evaluate the policy being pursued.[44]

Constitutional Values

The founding values of our democracy are enshrined in section 1 of the Constitution. Although not an exhaustive list of constitutional values, the importance of these founding values is highlighted by the fact that they are super-entrenched.[45]

Section 1(d) enshrines certain basic features of representative democracy as founding values. It provides that our democracy is founded on “[u]niversal adult suffrage, a national common voters role, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The enshrining of these features as founding values arises from our history in which the majority was disenfranchised and excluded from the political process.[46]

While the values in section 1(d) are directly relevant to the design of our electoral system, there have been seemingly inconsistent Constitutional Court decisions concerning the stand-alone legal force of our founding values.[47] In NICRO, the Constitution Court said that the values in section 1 “inform and give substance to all the provisions of the Constitution”.[48] The Court further said that the values do not “give rise to discrete and enforceable rights in themselves”, but are given effect through the rights in the Bill of Rights.[49] On this understanding, the role of the values in section 1 appears to be limited to that of an interpretive aid.[50]

However, in UDM II, the Constitutional Court said that our founding values “set positive standards with which all law must comply in order to be valid”.[51] It further said that laws that undermine the founding values will be invalid.[52] On this understanding, the founding values have stand-alone legal effect. In enacting legislation, Parliament must realise the founding values to an adequate level – below which the legislation may be invalidated for inconsistency with the Constitution.

UDM II opens the door for a constitutional challenge to the design of the electoral system based directly on inconsistency with the founding values. However, it is important to note that there is no legal obligation on Parliament to optimise the founding values. Not every value can be optimised by the electoral system. It falls to Parliament to make important trade-offs between values.

Conclusion

While Parliament has a wide latitude in choosing the design of our electoral system, there are clear constitutional constraints imposed upon Parliament. The next brief in this series will consider the “core values” identified by the Electoral Task Team, which are guiding the electoral reform process currently underway. It will consider the suitability of these core values for this purpose in light of the constitutional constraints identified herein.

Catherine Kruyer
Legal Researcher
catherine@hsf.org.za