SA’s electoral system needs an overhaul
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.