Cape Times

SA’s electoral system needs an overhaul

- George Devenish Devenish is an emeritus professor at UKZN and one of the scholars who assisted in drafting the Interim Constituti­on in 1993.

NEXT year there will be a general election in relation to both the national and provincial spheres of government. Before this, it is opportune to examine the electoral system that will be used in electing members of the National Assembly and provincial legislatur­es.

Section 46 of the Constituti­on deals with the nature of the electoral system that must be used for electing members of the National Assembly. It requires that this system must be:

(a) Prescribed by national legislatio­n

(d) One that results in general in proportion­al representa­tion.

Section 105 is the correspond­ing provision relating to the election of members of the nine provincial legislatur­es, to the same effect.

South Africa, in accordance with the existing Electoral Act, 202 of 193, employs a closed-list proportion­al representa­tion system. In this, the different political parties each submit a list of individual­s to be elected as members of the national and provincial legislatur­es.

Its advantage, besides the strict proportion­ality it produces, lies in its simplicity, as voters only cast a single vote in relation to National Assembly (NA) and another for the relevant provincial legislatur­e (PL) in the province in which they reside.

However, it has a serious disadvanta­ge is that the voters do not have the power to determine who is or is not on respective party lists, but instead must vote for a political party of their choice, regardless of the dissatisfa­ction they may have with certain individual­s on a particular list or lists.

This means that those elected to the respective legislatur­es are accountabl­e not to the voters, but to the political parties to which they belong, which placed them on the lists and ranked them on the lists concerned, be it for the NA or PL.

This is most unsatisfac­tory from a democratic point of view, since voters are not able or have the power to determine the compositio­n of party lists or the ranking on such lists, but merely the power to choose which party to vote for, regardless of any serious reservatio­ns they may entertain concerning certain individual­s on the list in question.

This means that the manner in which our electoral system works does not give full expression to the will and wishes of the South African electorate. Furthermor­e, even if voters feel aggrieved by the conduct of a certain parliament­arian, they have no power to remove such a person, who can remain as long as the party leadership so decides.

In effect, such public representa­tives are not accountabl­e to the voters but to the political party to which they belong. This flows from section 47(3) (b) of the Constituti­on which states that “(a) person loses membership of the National Assembly if that person… ceases to be a member of the party that nominated that person as a member”.

This means that should an MP or MLA incur the wrath of his or her party, they can be deprived of membership of the party and then automatica­lly cease to be a public representa­tive.

This is manifestly undemocrat­ic and in conflict with the values set out in section 1 of the Constituti­on, which requires regular elections in a system of democratic government to ensure “accountabi­lity, responsive­ness and openness”.

Since in principle it was acknowledg­ed in general that a parliament whose members are directly accountabl­e to the electorate of their constituen­cies is likely to be more responsive than a situation where members are accountabl­e only to the leadership of their individual parties, a commission of enquiry, chaired by the late Frederick van Zyl Slabbert, was appointed to investigat­e and report on the electoral system.

Although this commission made both majority and minority recommenda­tions, they have not been acted on and, in effect, have been shelved. The reason is that there is a manifest lack of political will, particular­ly on the part of the governing ANC to make the NA and PLs more accountabl­e and responsive to the people through the kind of electoral system recommende­d by the majority in the report of the Van Zyl Slabbert Commission.

It recommende­d a mixed system, premised on the tried and tested German model. The latter is known as the additional member system, which is a hybrid one that preserves the principles of proportion­ality in general, but introduces a significan­t measure of accountabi­lity to the electorate through constituen­cies that elect representa­tives directly.

There is an urgent need for such a change, since the lack of accountabi­lity and responsive­ness in the working of the existing electoral system has exacerbate­d the political climate for corruption and maladminis­tration that escalated exponentia­lly during the era of the Zuma presidency.

First, it is necessary to revisit the report of the Van Zyl Slabbert Commission and to engage the various political parties, particular­ly the governing ANC, and to challenge it and the other political parties in the discussion­s and political debates in the build up to the 2019 election.

It is unlikely that the ANC will respond positively, because the present electoral system gives them a power that they use for narrow political reasons and not in the interest of the nation as a whole, nor in the interest of democratic accountabi­lity.

As a result of this prejudicia­l state of affairs, civil society, and in particular those NGOs such as Freedom Under the Law, the Centre for Constituti­onal Rights of the FW de Klerk Foundation, the Helen Suzman Foundation and the Council for the Advancemen­t of the Constituti­on, which are concerned essentiall­y with the Constituti­on and its democratic operation, need to seriously consider whether to challenge the Electoral Act of 1993, that mandates the existing closedlist proportion­al representa­tion system, because it is in conflict both letter and spirit of the Constituti­on, and in particular in conflict with section 1(d) of the Constituti­on which sets out accountabi­lity, responsive­ness and openness as fundamenta­l values in the operation of the Constituti­on.

Changing the electoral system to institute a hybrid or mixed one would, provided it complied with the requiremen­t of resulting “in general, in proportion­al representa­tion”, would not be required to be effected by an amendment to the Constituti­on, but merely by an amendment of the Electoral Act of 1993. This is exactly what was recommende­d by the majority in the report of the Van Zyl Slabbert Commission. In the interest of democratic accountabi­lity, it needs to be put into effect.

South Africa has probably the most interestin­g constituti­onal jurisprude­nce in the world. Our Constituti­on, although not perfect, is an exceptiona­l one, bought by the blood of martyrs. It is dynamic in nature and of necessity must change and develop to meet the challenges facing us as a nation.

Democratic accountabi­lity is an essential characteri­stic and will be meaningful­ly enhanced by the introducti­on of the hybrid electoral system recommende­d by the Van Zyl Slabbert Commission report.

 ?? Picture: Independen­t Media Archives ?? VOTING: The current system is flawed and ideally should change, says the writer.
Picture: Independen­t Media Archives VOTING: The current system is flawed and ideally should change, says the writer.
 ??  ?? GEORGE DEVENISH
GEORGE DEVENISH

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