Reforming a broken system: Can Electoral Act amendments revive faith in SA’s democracy?

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On the eve of South Africa’s freedom, its outgoing rulers and their would-be successors held a series of talks that came to form the foundation of how the new government would be selected. Twenty-six years into that democratic experiment and we’ve once again arrived at a pivotal moment of discussion.

In a landmark judgment in June, the Constitutional Court declared the Electoral Act to be unconstitutional. Specifically, it found that the legislation strips citizens of the right not to affiliate themselves to a political party. Individual candidates, it ruled, must be allowed to contest elections independently.

The implications extend far beyond a few new names on the ballot paper. What we are staring at is the potential for a complete overhaul of the Electoral Act and the way we have selected our representative for nearly three decades.

Parliament has been given 24 months by the Constitutional Court to amend the legislation. In that time it has promised to engage all stakeholders — from political parties to civil society and, of course, the citizenry at large — on the appropriate steps forward as we reshape our electoral systems. South Africans, it would seem, have an unprecedented opportunity to help define a stronger, healthier democracy.


A broken system

Our current electoral system is broken; that ceased to be a matter of opinion when the Constitutional Court ruled in favour of an application brought by the New Nation Movement (NNM) and three other applicants. It’s now up to Parliament to determine to what extent it will be patched up or overhauled.

For the entirety of its democratic project so far, South Africa has operated under a proportional representation (PR) system. In short, this means voters select parties that will represent them in Parliament. The 400 seats up for grabs are then distributed in proportion to the election results. As opposed to self-explanatory winner-takes-all systems, this ensures that minority interests are protected: in the 2019 elections, a mere 0.18% of the vote was good enough to earn both Al Jama-ah and the Pan Africanist Congress a literal seat at the table. In other words, every vote counts.

During the inception of the modern Electoral Act, the prospect of a legislature that mirrored the population dynamics of those it served was particularly appealing to a country looking to heal after decades of violence and inhumane racial policies. As the fundamentals of the electoral system were debated at the Convention for a Democratic South Africa (Codesa) in 1991 and solidified at the Multiparty Negotiating Forum in 1993, the implementation of a PR setup never looked to be in doubt. 

According to academic Tom Lodge, the ANC, National Party and the Democratic Party all favoured the system for differing reasons. Most importantly, the former had come to accept a party-list approach as the ideal form of its imminent governance. Although constitutional specialist Kader Asmal had once described PR as “the ineluctable need of the racial oligarchy to maintain its power”, those fears had assuaged by the time he presented the option to a 1990 party conference.

For the rest of the nation, there was little reason to question an approach that was set to hand full control of the leadership reigns to the ANC.

The way MPs behave, you can see that their performance is geared towards pleasing party bosses more than doing things that would benefit the public as a whole. Zuma became a real spark to that debate

Mcebisi Ndletyana
Mcebisi Ndletyana.

“We trusted our leaders,” associate professor Mcebisi Ndletyana tells the Mail & Guardian. “The ANC had no blemish at all. It was not a strange thing to think of voting for the ANC and [with] the thought of having [Nelson] Mandela there was even more of a reassurance. Because Mandela led the ANC, you never even entertained the thought of any abuse of power.”

The values of the revolutionary party were also in sync with those that the Rainbow Nation dream promised. Through the party system, the ANC would have the power to implement policies of nonsexism and nonracialism in the country’s leadership structures: because lists are elected at party level, the inherent biases of larger society would, theoretically, be cut out. 

As much as there was broad consensus about PR, it’s important to understand that the legislation was intended only to temporarily hold the hand of a nascent democracy or, at the least, be subject to a review after the 1999 general elections. Then-president Thabo Mbeki thus set up the Van Zyl Slabbert Commission, headed by former opposition leader Frederik van Zyl Slabbert, to look into the options available to South Africa. In the subsequent report released in 2003, the majority suggestion was to adopt a mixed system, one in which MPs would be elected from multi-member constituencies. Nonetheless, Parliament elected to ignore that advice and retain the system already in place.

Although critics have long used this decision to paint a scenario in which the government went down the wrong route at a crossroads, at the time there was scarce popular opposition to preserving the status quo. Research commissioned for the Van Zyl Slabbert report found that 74% of voters were “satisfied with the way we elect our government”, while 78% said it enabled them to “change the party in power”. Overall, “delegates were left in no doubt that there was a very high level of satisfaction with the current system”.

That contentment would gradually erode, however, and give way to apathy and disillusionment. What caused public opinion to swerve has a simple umbrella term: the “Zuma years”. The subject of a much-publicised rape trial, implicated in multiple corruption scandals and later the figurehead of state-capture allegations, to many people former president Jacob Zuma epitomised the flaws of a system that does not enable its voters to directly elect its leaders. A feeling of helplessness pervaded the electorate.

“A much-stronger argument emerged that you need to loosen the grip of political parties on MPs,” says Ndletyana. “The way MPs behave, you can see that their performance is geared towards pleasing party bosses more than doing things that would benefit the public as a whole. Zuma became a real spark to that debate. We should have looked at it earlier, but we needed to have a Zuma character really to convince us of the necessity of this view.”

Government malfeasance may have not only shattered trust in our leaders, but the very system that propped them up. Over the past few years, we have seen a number of surveys and research studies emerging that support the anecdotal evidence that we’re losing faith in the political process. One such report released by Afrobarometer in July found that only 54% of South Africans believe that democracy is preferable to any other form of government. This is a 16% drop in less than a decade and places the country near the bottom of the 34 surveyed — only Lesotho, Madagascar, Tunisia and Eswatini are worse off. Satisfaction with how democracy is working has also declined significantly: from 60% in 2011, to 42% in 2018. 

What arrives next

Whichever way you cut the numbers, it is clear that the nation is only growing increasingly frustrated with the manner in which our positions of power are filled; appreciating that reality helps us understand the “why now” aspect of the Constitutional Court ruling. Answering “what next” is far trickier.

Predictions have travelled the full political gamut over the past two months. Although Mosiuoa Lekota and Mmusi Maimane raised their fists on Constitutional Hill in praise of a new democratic era, other commentators have been quick to offer sobering suggestions that this does not mean exactly what some wish it did. 

Lecturer and political analyst Sithembile Mbete, for instance, has pointed out that the NNM application specifically looked to address the constitutional right to freedom of association and the right to run for office, the finding in their favour was thus not an indictment of our political system. Former DA city councillor Jordan Griffiths, meanwhile, argues that independent candidates who have contested office elsewhere in the world and at municipal level have rarely fared well, so it would be unreasonable to expect them to make much of a dent on the established order. There is also the fact that anyone standing on their own will invariably lack the resources and institutional support of their counterparts in party structures. 

We can also almost certainly discount the notion that South Africans will be able to directly elect a president. Again, we have a parliamentary system — meaning the president is chosen by the legislature. The same rules would apply for an independent candidate to fill the highest position in the land and, naturally, he or she would not enjoy the support of MPs aligned to their own factions. 

For that to change we would have to switch to a presidential system — as used in the United States, for example — which would see the main ballot cast for candidates and not parties. MPs simply have no reason to go this route and surrender their position of power. If they did, it’s perfectly conceivable that a figure such as Patrice Motsepe, to throw out an example of someone who has established popularity and wealth, runs a successful campaign with or without the blessing of the ANC or any other organisation.

I also said to them that it would be good to look into who should elect a president in this country, as opposed to relying only on 5000 delegates in a conference taking decisions on behalf of a population of 57-million”

Bantu Holomisa
Bantu Holomisa (Photo by GULSHAN KHAN / AFP)

Which doesn’t mean the idea won’t be entertained. United Democratic Movement leader Bantu Holomisa, for one, says he is pushing for an amendment that would give the people a greater say of who sits atop the executive. He has written a letter to the Electoral Commission of South Africa (IEC) asking that the body engage party leaders on this issue, but says it has pooh-poohed the idea.

“I said they should invite party leaders to a meeting and we discuss the implications of the Constitutional Court ruling,” he tells the M&G. “When are we starting to prepare for this? I also said to them that it would be good to look into who should elect a president in this country, as opposed to relying only on 5 000 delegates in a conference taking decisions on behalf of a population of 57-million. It’s not fair. We need separate legislation to deal with a seperate election of a president.”

Parliament, for its part, has so far indicated that it will engage all positions on the matter throughout the course of the process. To open a July sitting of the portfolio committee on home affairs — the arm that will be responsible for amending the Act — chairperson Bongani Bongo reiterated that the Electoral Act was instituted during the founding of democracy for a specific purpose and under unique conditions. Political systems are an evolving beast, he said; not even the trias politica — the separation of powers model — should be considered sacrosanct.

The purpose of the meeting was to hear a presentation by the IEC, which had volunteered to provide input wherever it could (Bongo, though, was keen to stress that the chapter nine institution by no means has any actual say in the decision). The IEC proceeded to break down the types of systems in use around the world and provide an elections 101 breakdown.

As wide and varied as the options are, the most likely outcome, and that which the Constitutional Court seemed to suggest, is that the model currently in use at local-government level is elevated to provincial and national polls as well. That is to say we will adopt a mixed ballot, in which voters will make their mark in both a constituency and PR system. Independent candidates would be able to contest only the former positions, which means that if Parliament is divided down the middle then 200 seats would potentially be shared between them. Again, this decreases the likelihood of a breach in party hegemony.

But then, that may be missing the point.

New landscape of accountability

It’s understandable that the bulk of the immediate reactions to June’s judgment have darted to the novelty of electing individuals, yet there’s an argument that its true effects will come from the enforced changes to the way our current representatives conduct their business. 

After individuals have been elected and occupy certain positions, whether through their parties or direct election, they should have a direct responsibility to constituencies and not account to Parliament

Mandisa Mashego
Mandisa Mashego. (Veli Nhlapo)

“It’s about strategy,” former Economic Freedom Fighters Gauteng chairperson Mandisa Mashego enthuses. “What was so brilliant about the New Nation Movement questioning the constitutionality, or lack thereof, of disallowing independent candidates at provincial level … it’s not really about the fact that independent candidates should be allowed, and must be allowed, to contest in a constitutional democracy in order to get greater accountability. 

“The reality is that when the judgment declared that parts of the Electoral Act are unconstitutional, what it translated into is that the entire Electoral Act is unconstitutional when you look at the actual practical meaning and interpretation of the judgment.”

Having previously embraced, in an M&G interview, her sobriquet as a “shit-stirrer” before and during her time in the EFF, Mashego is now looking to be intimately involved in the process of reforming the Act, which she feels is fundamentally flawed. Having been approached by the NNM prior to its June triumph, she will now be working with the organisation during its planned meetings with the IEC, Parliament and interested members of civil society.  

As part of the forthcoming engagements with the portfolio committee on home affairs, Mashego says they intend to push for a number of amendments which, among other implications, will greatly diminish the power party bosses wield in the legislature.

“After individuals have been elected and occupy certain positions, whether through their parties or direct election, they should have a direct responsibility to constituencies and not account to Parliament,” she says. “Parliament should just be an administrative arm. I want to see amendments that are going to talk to direct accountability; that are going to talk to direct civilian oversight and authority in terms of approval processes over budgets, and also see direct accountability of heads of state entities. 

“All presiding officers of councils, legislatures and [the] National Assembly — meaning the speaker, the deputy speaker, [the] chairperson who coordinates committees, co-ordinators, whips of the legislature — must not come from political parties, but must be appointed through civilian processes.”

These are largely ideals that may be perceived as residing on the more utopian end of the spectrum. Once more, it all goes back to how pedantically Parliament colours within the lines of the Constitutional Court judgment and how tightly it clings to the established order.

Still, the implementation of constituencies should institute a greater sense of accountability into the political process by default. Parties will be desperate not to lose seats in the constituency ballot, but may well come up against a number of attractive, credible candidates. Their only recourse will be to offer candidates that are equally credible — a stark contrast to current deployments, which, someone like Ndletyana would argue, are made with impunity.

“If you look at the recent slate of individuals that went to Parliament, Ace Magashule nominated people like Nomvula Mokonyane, [Malusi] Gigaba, Bongani Bongo — all those people have clouds hanging over their heads,” Ndletyana says. “Some of them did not take up their seats because of popular outcry. But you have those that just defy any popular sentiment, like Bongani Bongo, who insisted on going to Parliament and they’ve given him a permanent position as a chairperson of a portfolio on home affairs. 

“The ANC knows that ‘people are voting for us; they don’t know who we’re taking there’. They are mostly concerned about the party and then have these questionable characters in Parliament.”

Lastly, perhaps, the least we can hope for is that the new dispensation emboldens a tired, disillusioned electorate. Voter turnout has fallen sharply since the still-fresh expectations of 1999, and reached an all-time low 20 years later. The IEC estimates that 74.5% of the eligible population registered to vote in the 2019 elections, and of that, only 66% turned up at the polls on the day. A simple mathematic calculation thus shows that just 49% of those who had the option of participating in the selection of their government decided to exercise it. Those dire numbers could seemingly only rise with a reinvigoration of the Electoral Act. 

And yet, it’s impossible to predict whether we’ll be in a better position come 2024. With divisions only growing our political landscape, it’s anyone’s guess what the effect of throwing independent candidates into the mix will be; this is before we even begin to discuss the catastrophic economic and societal fallout of the Covid-19 pandemic. The next two years — assuming the time is not prolonged — are set to be a crucial marker in our history. Reforming the Electoral Act is not an undertaking that South Africans can afford to trifle with.

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Luke Feltham
Luke Feltham

Luke Feltham runs the Mail & Guardian's sports desk. He was previously the online day editor.

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