Present electoral system ‘clearly unsatisfactory’
Secret ballot will allow MPs to vote with their consciences
INTENSE controversy has arisen in relation to a request by opposition parties for a secret ballot to be used in the no-confidence debate in relation to President Jacob Zuma. The Speaker of the National Assembly, Baleka Mbete, has indicated that the rules of Parliament do not make explicit provision for such a secret ballot as requested by the opposition parties.
Opposition parties are convinced, considering the manifest dissension in the governing ANC about the cabinet reshuffle and subsequent downgrading of our economy by the rating agencies to junk status that – were a secret ballot allowed – sufficient members of the ANC would vote with opposition members for the no-confidence motion to succeed, thereby resulting in the termination of Zuma’s office of president.
In order to understand why a secret ballot is deemed necessary by opposition parties, it is essential to comprehend the nature and operation of our extant electoral system.
Since our first democratic election of 27 April 1994, South Africa, in terms of the interim constitution, and in subsequent elections, in terms of the 1996 constitution, the list system of proportional representation has been used. This system, although it has some advantages by virtue of its proportional character, unfortunately gives the leadership of political parties monopolistic control over public representatives, while simultaneously freeing them from the legitimate and necessary constituency pressures to which representatives in the Westminster system are subject to, and which was used in elections in South Africa before 1994.
Electoral systems can be characterised as involving either an imperative or free mandate. In the latter, members of parliament, although they are invariably also members of a particular party, have a free mandate to cross the floor and thereby join another party, or become independent members, and do not thereby forfeit their parliamentary seats.
In British parliamentary history, illustrious World War II statesman Winston Churchill’s defection from the Conservative or Tory Party in 1904 to join the Liberal Party is exemplary. After defection, he did not lose his seat and went on to become a prominent cabinet member of the Liberal Party government after its election to office in 1906.
This so-called “crossing the floor” has occurred in South Africa, before 1994, during the period of discredited white minority rule, since 1910.
In contrast to the free mandate, there is an imperative mandate, which applies in the list system of proportional representation which operates in terms of our 1996 constitution.
Implied in such a list system is what is known as a defection mechanism, which allows political parties to terminate the political membership of a representative who defects to another party or fails to comply with caucus decisions of the leadership of the party concerned.
In the present political context, this means that should ANC MPs vote with the opposition in the no-confidence debate on April 18, then the ANC could and most certainly will terminate their membership and they will thereby lose their seats. This operates as a powerful deterrent in relation to members who wish to vote according to their conscience and not according to party diktat!
It is for this reason that the opposition parties are seeking a secret ballot. Such a ballot would allow these members to vote not merely according to party discipline, but according to their conscience and what they deem to be in the interest of the country. However, using an open ballot, their vote in favour of the no-confidence motion will immediately result in the loss of their seats as well as their political careers and livelihoods.
The present electoral system is clearly unsatisfactory. Although the Van Zyl Slabbert Commission, appointed to investigate a new system, recommended a hybrid system similar to the German one, involving elements of both proportional as well as constituency representation, no action was taken and the extant list system continues to operate, despite its manifest flaws.
Lawyers for the UDM of Bantu Holomisa have successfully approached the Constitutional Court in relation to a secret ballot, seeking firstly to argue the case of direct access to the court and, secondly, substantively for a secret ballot in the recording of the voting relating to the no-confidence debate.
Holomisa indicated, on April 12, that the court’s decision to even entertain the application was a partial victory for the opposition.
Such a decision, being pending by the court, would by virtue of the time frame require a postponement of the vote of no confidence in the president, for which purpose a letter has been written to the speaker. He indicated further that his party would consider bringing an application to interdict the vote if it was not postponed.
Although, in the circumstances, the court is likely to grant direct access on the substantive issue involving an instruction to the speaker to grant a secret ballot, this would require very persuasive and cogent legal and jurisprudential argument and could have very profound constitutional and political consequences, particularly in relation to, inter alia, the doctrine of separation of powers and the role of the judiciary in highly sensitive and controversial political issues.
What can, however, be said is that our current political situation, traumatic and controversial that it most certainly is, indicates in no uncertain terms that our legal and constitutional jurisprudence is undoubtedly the most interesting and fascinating in the world.
We await with bated breath the outcomes of the application to the Constitutional Court and the no-confidence debate in the National Assembly.