The people versus the electoral system

The trajectory of South African politics was changed for the better 27 years ago. The man who set the process in motion at the opening of Parliament in 1990, former president FW de Klerk, took to the podium at the Table Bay Hotel recently to address, lucidly and incisively, the delegates cramming the ballroom.

His theme was The Constitution and Governance at Another Crossroads. For a man who has invested his political reputation in the success of the constitutional transformation process, he was uncharacteristically confrontational towards President Jacob Zuma’s leadership and critical of the state of the nation as we reach 20 years of the coming into operation of the current Constitution on February 4 1997.

The basic building blocks are still in place. Our foundational values remain nonracism and nonsexism in a multiparty democracy that ensures openness, accountability and responsiveness in government; these values are the means to measure our progress.

The Constitution and the rule of law remain supreme. Any conduct that is inconsistent with them is invalid. Our state-of-the-art, justiciable Bill of Rights is still in place.

This innovation means the state must respect, protect, promote and fulfil all of the many rights guaranteed to everyone in South Africa.

At the conference, Moeletsi Mbeki, the brother of former president Thabo Mbeki, poured a large bucket of freezing water on the level of achievement of these national aspirations. His analysis reveals an “underclass” of just over 49% of the population. These are the unemployed, the underemployed and the unemployable. For them, the dream of dignity remains elusive.

Mbeki estimates that the elite of the South African population of 55-million could fit into FNB Stadium, with room to spare, at roughly 108 000. So much for the achievement of equality.

His analysis is not required to show that the rights in the Bill of Rights remain highly contested, especially those to land, housing, healthcare and education. The disparities that remain a generation and more after the official end of apartheid are there for all to see.

Former Con-stitutional Court Justice Zac Yacoob spent some time lamenting the failure of affirmative action measures to capture the essence of the Constitution’s transformational aims. Too often the measures in place do not advance the achievement of equality by those genuinely disadvantaged, instead favouring the politically well-connected and their friends.

Chairperson of Pepkor Christo Wiese rounded off the formal presentations with a spirited defence of capitalism, pointing out that change cannot occur in the absence of economic growth and that the conditions for achieving this growth are absent when red tape, lack of respect for property rights and threats to the rule of law are the order of the day.

Why then are our politicians and elite so unresponsive and lacking in accountability?

Leaving aside issues of corruption, incompetence, ineptitude, poor leadership and a general failure by the public administration to comply with the values and principles spelt out in section 195 of the Constitution, it is possible that the electoral system bears some of the blame for the mess.

At national and provincial levels, there is across-the-board proportional representation. This means voters can vote only for political parties, not individuals. The position is different at local level, where individual ward councillors are elected by popular vote alongside their proportional representation colleagues.

The Constitution itself contemplates a system that “results, in general, in proportional representation” ( section 46 (1) ). The words “in general” are significant.

Under the Bill of Rights, “every adult citizen has the right to stand for public office and, if elected, to hold office” (section 19(3)(b) ). Currently this right can only be exercised by belonging to a political party if election at provincial or national level is sought.

It is arguable that this is an unreasonable and unjustifiable limitation on the right to stand for office, given the lack of accountability of the political parties active in South Africa to anyone other than the party bosses. This unfortunate tendency is a natural consequence when career politicians are dependent for their livelihoods on the position they are allocated on the party list of candidates come election time. The party bosses make the allocation and accordingly have great power over the “elected” representatives of the parties represented in Parliament and the provincial councils.

They are not the representatives of the people in any direct sense. They are the representatives of the political parties to which they belong. All parliamentarians are painfully aware of the rule of the Constitution that they lose their place in Parliament if they cease to be a member of the party on whose list they were elected (section 47(3)(b) ).

It has long been acknowledged that a Parliament with members who are directly accountable to the electorate of their constituencies is likely to be more responsive that one that constantly has its eye on the whims of the party bosses.

The Van Zyl Slabbert commission of inquiry was appointed to look into the electoral system and made some majority and minority recommendations that have simply been shelved and ignored.

The idea at the dawn of democracy was that the first election would be one in which only proportional representation would be allowed because of the absence of a common voters roll and the logistical difficulties this lacuna would entail. It was contemplated that the electoral system would be revised once our democratic order was up and running.

It has not been revised because it seems the current system suits all political parties and their party bosses, who lurk in the background but exercise incredible unelected power because of their grip on the party lists of candidates for election.

Because there is apparently no political will to make Parliament and provincial councils more accountable and responsive to the people through the type of electoral system urged by Frederik van Zyl Slabbert, a mixed system based on the German model, the question arises whether there is any legal way of getting the politicians to do the right thing. The beauty of constitutional democracy is that politicians cannot do as they please, nor can they do anything their members may want, if either is inconsistent with the Constitution.

The need to dust down the Van Zyl Slabbert report was taken up with the constitutional review committee of the National Assembly by Accountability Now in April last year. Nothing has come of the representations made.

The next question is whether there is anything the law will allow to address the problem through the courts. The answer seems to lie in the Bill of Rights and its provision that entitles any adult citizen to seek election in their personal capacity and to hold office if elected without any requirement that this be done in a “party ticket only” way. The state must protect this right but it does not do so.

The issue is whether it is reasonable and justifiable to limit this right in our open and democratic order. It would seem, on the strength of the criticisms aired at the conference at the Table Bay Hotel on February 2 2017, that there is scope, given the lack of progress with the transformational character of the Constitution, for arguing that directly elected adult citizens rather than political party nominees will be able to make a better job of being open, accountable and responsive in the manner that section 1 of the Constitution contemplates.

Game on, anyone?

Paul Hoffman SC is a director of Accountability Now and the author of Confronting the Corrupt


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