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If it ain’t broke …

In its rather bleak and windswept way, the military test base at Arniston is a rather unlikely location for making political history. Yet it was the place where key negotiators in the Constitution-making process went in April 1996 to try and cut the deals that would write South Africa’s final Constitution.

Previous columns
by Richard Calland

It was an Easter weekend if memory serves and the deadline of May 8 was fast approaching; Cyril Ramaphosa’s beady eye was upon the founding fathers and mothers of South Africa’s new constitutional order.

One of the deals that was made concerned the election system and, in turn, the typology of South Africa’s representative democracy. The 1994 election had been fought on the basis of a modern — but uncomplicated — system of proportional representation (PR) based on party lists. There were voices from across the political spectrum that advocated a mixed system of part-PR and part-constituency representation.

No one argued for a return to the dark ages of Westminster-style first-past-the-post (FPTP), ”winner takes all”, constituency representation. But a German-style mixed system, such as that subsequently adopted here for the 2000 local government election, appeared to command the consensus view.

Something happened at the last minute. In fact, the 1994 model was retained for the 1999 election, as we all know. It’s not clear why exactly, but a very senior member of the African National Congress who is very close to the president once provided me with a very compelling rationale.

If you have a mixed system, he argued, you are most likely to end up with two classes of MPs. One has been directly elected via constituencies. The other by a ”top-up” list created by the party. If you are committed to non-racialism, he explained, then you have to face a hard fact: most constituency parties will choose candidates who reflect the demographics of the area and the power relations within them.

Thus, the typical constituency-elected MP would be a black African male. Meanwhile, the indirectly elected MPs would be chosen to enhance diversity and would thus be predominantly women and MPs drawn from minority race groups — coloured, Indian and white.

Directly elected MPs — and there is some evidence of this from the post-2000 local government sphere — tend to feel that they have greater legitimacy: they have been, after all, personally chosen by an identifiable electorate. Race and power within the caucus would collude in a potentially divisive way. The ANC leadership was worried about this, with good reason it seems.

Earlier this year during the most painful days of the HIV/Aids debate within the ANC caucus in Parliament, there were days when members of the caucus and of the ANC national executive committee would tell me, with contorted expressions, that not only was the issue divisive in its content, but that the split between ”progressives” — dissenters against President Thabo Mbeki’s own prevailing dissidence on HIV — and the loyalists, was showing some disquieting signs of lining up partly on the basis of race.

This is anathema to the ANC’s non-racial history and, therefore, great cause for concern for those ANC leaders who cherish this cultural heritage. I mention it specifically because it illuminates the link between electoral systems and other socio-political dynamics.

It’s the sort of thing that Van Zyl Slabbert’s election task team will be taking into account when deciding on its recommendations for electoral reform — assuming that it recommends change.

They may simply say that ”if it ain’t broke, don’t fix it”. The current system is legitimate: it’s simple and understood, and therefore trusted; it works well in practice; and it’s fair: every vote counts (unlike in the FPTP system where, if you happen to live in a constituency where one party is dominant, your vote for another party is ”wasted”).

It also serves the objective of inclusivity. Smaller, minority interest parties get represented because every vote counts. In FPTP systems they tend to get shut out. And, as the ANC representation in national Parliament shows — and it deserves great credit for this — a party that is committed to racial and gender inclusivity can do great things with its lists: 97 of the ANC’s membership of 266 in the National Assembly are women (36%) and approximately 30% are drawn from minority race groups, substantially higher than the actual demographic proportions in South African society as a whole.

But does the system serve the principle of accountability that is so central to the Constitution? This is a more vexing question. People like Tony Leon tend to overrate the extent to which direct constituency representation enhances accountability. It helps, but not that much in my experience (and I grew up and learned my politics in the archetypal constituency system of Britain). It’s certainly not a panacea. If you have strong parties with a determined approach to discipline, then being a constituency MP only helps at the margins.

It enables you to go to your chief whip and say, ”Look comrade, I agree with the party line, you know that, but back home, in the constituency, I’ve got problems.”

Which brings me finally to the crossing the floor furore and back to Arniston where, perhaps in return for the last-minute decision to retain the PR system and, moreover, embed it into the fabric of the Constitution, liberals such as Colin Eglin argued that there should be space for the right to leave your party but keep your seat in Parliament to be legislated later (the so-called ”right to floor-cross”).

It’s one of the nice little ironies of contemporary politics that the provision contemplating such a law should now be used to help return the Democratic Alliance to its original parts, as some New National Party members flee the nest. Furthermore, it is unlikely that the thoroughly unedifying spectacle of succulent inducements being offered to potential floor-crossers in recent weeks was what Eglin had in mind.

As another former defection-clause advocate, political philosopher Professor Andre du Toit, pointed out to me the other day, there are grave dangers when the political class turns inward in order to service the political requirements of party realignment without any apparent recourse to the voter.

Which may well be the common perception now and is why I am very glad that the United Democratic Movement’s challenge will enable the Constitutional Court to interpret whether the laws passed two weeks ago infringe the right to vote in an election that results ”in general, in proportional representation”.

The main impetus for the law, concedes the ANC, was the need to solve the DA problem at local government level in particular. But is it wise to change a Constitution in such a fundamental way so early in its life in order to serve such a temporal purpose?

If the Treatment Action Campaign’s challenge to the government’s policy on anti-retroviral drugs in May was seminal for the evolution of socio-economic rights, so the UDM case is likely to have a similar impact on the jurisprudence on political rights for the next generation. Constitutional practice and convention is supposed to evolve gently over decades. Within just six years the biggest cases are already reaching the Constitutional Court. This is extraordinary, but given the bold and impatient ambition that drives South Africa, perhaps it should not surprise anyone, least of all the Arniston deal-makers who may have supposed that their deals would remain unlocked for far longer than their public lives.

Archive: Previous columns by Richard Calland

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Richard Calland
Richard Calland is an associate professor in public law at the University of Cape Town and a founding partner of the Paternoster Group.

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