NUMBER 51 UMRABULOUMRABULO NUMBER 51 | 2021 U April 2021 LET’S TALK POLITICS

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ELECTORAL SYSTEMS AND REFORM U UMRABULO NUMBER 51 | 2021 UMRABULO CONTENTS IN THIS ISSUE NUMBER 51 | 2021

UMRABULO was a word used to inspire 3 EDITORIAL COMMENT political discussion and debate on Robben Island. This concept was revived in 1996 when the ANC published the first edition of Umrabulo. Umrabulo’s mission is to advance 5 Genesis Behind ANC Support for political education by encouraging debate and Proportional Representation discussions at all levels of the movement. by Justice Albie Sachs CALL FOR CONTRIBUTIONS Umrabulo welcomes contributions from readers. Contributions may be in response to previous articles or may raise new issues. Contributions 10 Changing Electoral System Talks must be sent to the address below. Is Much Ado About Very Little DISTRIBUTION LIST by Professor Steven Friedman To be added on the Umrabulo Distribution List, send your email address and/or WhatsApp number to [email protected]. Prospects For An Accountability Based EDITORIAL TEAM 14 Editor-In-Chief: Electoral System Deputy Editor-in-Chief: David Masondo by Lawson Naidoo Editor: JP Louw Editorial Team 2 , , , Joel Netshitenzhe, , and 19 The Unconstitutional To The Constitutional – Nkhensani Kubayi. A Refined South African Electoral Model Peer-review team: Andries Nel; Dipuo Mvelazi; Fébé Potgieter; Kwara Kekana; Mandla Nkomfe; by Daryl Swanepoel Marissa Van Rensburg; Msingathi Sipuka; Sarah Mokwebo and Tebogo Phadu. The team supports the work of the Editorial Team through critically proof-reading and sub-editing submitted articles.

Production and Publishing: Donovan Cloete ANC DIP Media Production Unit.

CONTACT INFORMATION Address: Umrabulo PO Box 61884 Marshalltown, 2107 Tel: 011 376 1000 Fax: 086 633 1437 E-mail: [email protected]

The contents and views expressed in Umrabulo do not necessarily reflect the policies or views of the ANC, OR Tambo School of Leadership or the Editorial Team.

Umrabulo on the web : www.anc1912.org.za and www.ortamboschool.org.za UMRABULO NUMBER 51 | 2021 U

EDITORIAL COMMENT

By JP Louw @jaypeelouw Jay Pee Louw

HIS 51st edition of sentation, Justice Albie Sachs Umrabulo Journal invites us through a fascinating themed Electoral storytelling format, to the back- Systems and Reform rooms of ANC’s thinking, pro- Tcomes at an opportune moment cesses and dealings in the early in light of continued debates 1990’s concerning the electoral brought to the fore, largely by system for a democratic South the June 2020 Constitution- Africa. al Court decision on what is termed the New Nation Move- Provocatively, Professor Steven ment’s case. In brief, the major- Friedman’s Changing Electoral ity decision of the court found System Talks Is Much Ado that aspects of the Electoral Act About Very Little questions if have shortfalls – particularly in terms of how it the Constitutional Court’s judgement actually 3 does not allow an individual to stand as a candi- means that a new electoral system is essential. date in provincial and national elections. The introductory paragraph sets the scene in this respect – “IF we all lived in textbooks, we could make Whilst looking at what this state of affairs im- democracy work for South Africa’s people by chang- plies in relation to South Africa’s electoral sys- ing the electoral system. Since we live in the real tems, some historical account is also provided world, we need to look elsewhere for remedies”. to contextualise the path travelled that brought us to where we are. Also explored are practicali- Lawson Naidoo’s Prospects For An Account- ties that comes into play for the Constitutional ability Based Electoral System and Daryl Court’s directives to be brought to life. Swanepoel’s The Unconstitutional To The Con- stitutional – A Refined South African Electoral Therefore, quite appropriately so, in Genesis Model makes pointed proposals about what fix- Behind ANC Support for Proportional Repre- ing could look like.

The next edition (52nd edition) of Umrabulo If you have an interest to contribute to the Journal is themed Imperialism Today. next edition of Umrabulo Journal based on this outline, please contact the editor JP Louw on Focal areas the edition seeks to cover includes: [email protected]. All articles are reviewed by the Umrabulo Review Panel and assessed • The meaning of Joe Biden’s by the Umrabulo Editorial Committee and election Umrabulo Collective for publication. • The relationship between China and Africa Articles must: • Be responsive to the theme; and • South African policy in Africa • Be about 2 000 words long • The Zimbabwean question. (AND NOT EXCEED 3 000 words). U UMRABULO NUMBER 51 | 2021

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UMRABULO UMRABULO NUMBER 51 | 2021 U The Genesis Behind ANC’s Support For Proportional Representation – A historical account

■ Our concern was always about how to get the best constitutional system for our country. It was definitely not about how could we devise constitutional arrangements to maximise the chances of the ANC winning power at the first elections. On the contrary, in at least two respects we took decisions that we knew would reduce the possibilities of a massive ANC electoral victory.

Introductory Note: I was invited by the Editor of Umrabulo to contrib- ute to Umrabulo Journal written material I produced on ANC’s think- ing in the early 1990s concerning the electoral system for a democratic South Africa. This is an extract on the topic from a book I authored, en- 5 titled Oliver Tambo’s Dream (African Voices, 2017), followed by some explanatory and supplementary thoughts.

By Justice Albie Sachs

UWC Workshops On ty strong in terms of brain pow- Critical Constitutional er. We had the University of the Issues Western Cape (UWC) as our When the ANC Constitutional base for organising a series of Committee comprising Zola widely supported workshops Skweyiya, Lehlohonolo Teddy on critical constitutional issues Pekane, Jobs Jobodwana, Kader in advance of the negotiations. Asmal, and I More than half of the members returned from exile in 1990, we of the committee went on to were joined by people like Pius find positions at the -Commu Langa, , Bulelani nity Law Centre at UWC. Ngcuka, Fink Haysom and Essa Moosa. At the request of ANC President Nelson UWC became the engine room of committed Mandela, Arthur Chaskalson and George Bizos thought about our new Constitution. It was an (who were Mandela’s lawyers from the Rivonia active, engaged, scholarly life – not just waffle, Trial) attended and participated actively in our slogans and fancy words. meetings. How could we get a country with deep values Our Constitutional Committee had become pret- that were really meaningful for the lives of the U UMRABULO NUMBER 51 | 2021

people? Not just a territory with populations in Should we have a Constitutional Court? What it, divided into Bantustans and group areas and kind of electoral system should we have? Should whites and Blacks and Coloureds and Indians. socioeconomic rights be enforceable as constitu- But a united and single country. tional rights by judges? How to organise the re- gions? And how could we do so on the African conti- nent when much of the world was influenced by We had to understand the implications of all racist ideas? By Afro-pessimism, believing that these constitutional proposals. There were pow- democracy was not for Africa and that Black erful moves to divide South Africa into little people couldn’t rule. That tribalism would take Cantons. The upmarket white Bishopscourt over and personal ambition would be inevitable. would be in one Canton and disadvantaged We had to prove and disprove and re-prove to Black Langa would be in another, and they peoples of our country, the continent and the would each have self-government. How did af- world as well as ourselves that our beliefs were firmative action work in Malaysia, India and the true. That democracy was for us. United States?

A series of workshops was accordingly organ- Our concern was always about how to get the ised by UWC’s Centre for Development Stud- best constitutional system for our country. It was ies and the Community Law Centre, working definitely not about how could we devise con- closely with the ANC Constitutional Commit- stitutional arrangements to maximise chances tee. All the ANC regions sent participants, and of the ANC winning power at the first elections. many progressive experts from different parts On the contrary, in at least two respects we took of the world joined us. Engaged South African decisions that we knew would reduce the possi- scholars, thoughtful urban and rural activists, bilities of a massive ANC electoral victory. Both and activist lawyers pooled ideas in a spirit of related to matters that arouse lively debates to- lively, open debate. These workshops dealt with day. 6 matters such as whether to have a Constitutional Court, the electoral system, the regions, social The first was to opt for a president chosen by and economic rights and affirmative action. And Parliament and not by a direct vote. The second the topic on which we had the greatest number was largely to favour an electoral system based of workshops was that of property and land re- on Proportional Representation (PR) and not distribution. constituency representation. The issues of presi- dential power and of PR are both very much in The challenge of constitution-making was to go the news today, so our thinking at the time is deep into ourselves. To create a set of institu- worth mentioning. tions and values that honours all of those who believed, struggled and fought for the possibil- ity of South Africa that is a free and democrat- ic country. We had been very at making Deciding between a presidential or the country ungovernable. Oh, we were smart prime-ministerial system at that. But governing – now that was another Already in Lusaka we were discussing whether whole thing altogether. we wanted a presidential system or a prime min- isterial system. Should the head of the country be How would we structure government? What chosen directly by popular vote, as in the United strategies in particular should we adopt? States or in France, or indirectly by Parliament? At first we opted for a directly elected president. We were used to being the opposition – challeng- We knew that was enormously ing, destroying. For some people, in fact, it was so popular and that he would sweep to power as much part and parcel of their psyches to oppose President carrying the ANC into office. that they continued to do so even when we were making progress in building something new. Yet But the more we thought about it, the more con- many of us were longing to heal, build and con- cerned we became. We used to have a governor struct. To see and taste the fruits of the freedom general in the old days – sent by the British, rep- for which we’d been fighting for so long. resenting the king or the queen – who was called “the supreme chief of all natives”. Totally top There were things we knew nothing about. down. Then we had had the traditional leaders UMRABULO NUMBER 51 | 2021 U under who had sided with the regime interesting proposals for combining PR and di- and became dictatorial towards the people. Top rectly elected MPs. They should be looked at on down. Then, in our struggle, underground po- a cross-party basis. litical and military work by its very nature had had to be top-down. The fact is that, in rejecting the notion of using single-member constituencies, the ANC know- Now you put these three traditions together ingly forewent the possibilities of getting an 80 and you choose a president as head of state, you per cent majority in the first Parliament resulting can say bye-bye to Parliament. We said, no – we in only 60 per cent of the vote. Not only would wanted the President to be accountable to Parlia- an 80 percent win have been disastrous for the ment, not vice versa. project of building national cohesion through an inclusive constitution-making project. It would have been inherently undemocratic. Finding the right electoral system Today many question the use of PR and argue As our workshop had established, using a sys- that Members of Parliament should be chosen in tem of First Past the Post (FPTP) in single-mem- constituencies where they would be directly ac- ber constituencies results in gross over-represen- countable to the local electorate. We were used to tation of the leading party. Thus, in the United secret ballots inside the ANC to elect the leader- Kingdom, a party that secures 45 per cent of the ship and unions had similar. But we knew noth- votes could end up with two thirds of the seats. ing about electoral systems for a whole country.

So we invited people from other countries and Additional commentary experts from inside South Africa. People from At the workshop described above, the break- each of the ANC regions came to the workshop away groups were guided by three broad prin- and we collaborated with other university bod- ciples. We wanted representation that best cor- ies in a very free and open way. We didn’t start responded to the will of the people. We wanted 7 off with any pre-determined view. Members of Parliament to be accountable to their voters. And the electoral system had to be After many presentations, we divided into three easily manageable in a country in which a large different breakaway groups. We looked particu- section of the population had never had the op- larly at the Single Transferable Vote (STV), PR portunity to vote and in which many people and directly elected constituency representation, were not literate. which the whites had in South Africa. Each of the three groups came out with the same rec- After a number of presentations were made, the ommendation - to use PR with two important breakaway groups considered four major elec- qualifications. The first was that the PR party toral systems. These being single-member; con- lists would be organised on both a national and stituency-based representation for the First Past a regional basis, so as to give the regions con- the Post (FPTP); the Single Transferable Vote trol of half the MPs. The second was that pure (STV); Proportional Representation (PR); and a PR would be used for the first elections only, mixed system (PR plus constituencies). The air where our intention was that Parliament would was filled with acronyms. become a Constituent Assembly to draft a new Constitution. But the second round of elections First Past the Post (FPTP). I had lived part of would use a mixed system, like in Germany – my exile in England where you knew your local where constituencies and PR are combined. MP. You could write to your MP and go every Saturday morning to their office with your prob- You might be surprised to know there is nothing lems. In South Africa we were used to constitu- in the Constitution today that prevents that from encies. But there were great problems with this happening. The Constitution says the electoral system. process must in general result in PR. At the local government level, we have wards and we have Firstly, it could produce severely skewed and PR. We don’t have to change the Constitution to undemocratic outcomes. have directly elected MPs. The Van Zyl Slabbert Commission on Electoral Reform (2003), which Secondly, delimitation of the constituency was quite broad-based, came up with some very boundaries would be a nightmare. Parties U UMRABULO NUMBER 51 | 2021

would fight over alleged gerrymandering rather account of our diversity, but not just be the sum than over policy. Our first democratic elections of all our distinctive parts. It would encourage would have been mired in acrimony. people to think outside of the parochial boxes into which apartheid had squeezed us, facilitat- Thirdly, constituencies would replicate and en- ing the development of the non-racial and non- trench the spatial apartheid divisions of our sexist South Africa we wished to create. It would country: Blacks would represent Blacks; Whites, encourage political parties to seek support from Whites; Indians, Indians; Coloured people, Co- all sectors of South African society and not only loured people. from predominant groups in any particular con- stituency. Fourthly, constituencies would favour strong, ambitious men. We wanted to ensure that wom- Finally, it would be easy for voters to under- en, who had contributed so much to the struggle, stand and make their choices. It was operation- would be fully represented. We weren’t short of ally easy for votes to be sorted and counted. All typical MPs – charismatic crowd-pleasers with that the ballot papers would need would be pic- the gift of the gab. But we also wanted quiet tures of leaders coupled with the party colours. and thoughtful people who could become great parliamentarians because of their values, knowl- As it turned out, the rapporteurs for all three edge and wisdom. And since the Cabinet would breakaway groups reported that they supported be drawn from Members of Parliament, we PR. At the same time, all were concerned about needed a place for people with expertise in rela- the lack of direct accountability of individual tion to finance, health, education and so forth. MPs to their electors. As a gesture in the direc- tion of local accountability, all accepted that half Finally, we were concerned about what Ameri- the MPs should be elected from national party cans call the ‘pork barrel factor’ - the development lists and the other half from provincial party lists. of a semi-corrupt relationship between ambi- This would mean that, if we were to have nine tious party leaders who secure allegiance from provinces, the people in each province would be 8 MPs by offering or threatening to withhold eco- able to choose and hold to account their particu- nomic investment in their constituencies. lar quota of MPs.

A key factor in our minds was that the first Single Transferrable Vote (STV). A member of elections were for a body whose main function the Liberal Party in the UK persuaded us that would be to serve as what we then called the the electoral system best guaranteed to reflect Constituent Assembly (CA) that was to draft the the democratically expressed will of the people Constitution. We wanted everybody to be in the was the STV. But it soon became clear that STV CA – even the smallest groups. Political scientists was a complicated system for any country and warned us that if we had PR, we would need to would have been quite impossible to explain have a threshold or minimum cut-off point of and manage in the circumstances of South Afri- anything between two and ten per cent of the ca. Apart from anything else, it required literacy national vote. This would be to avoid a prolif- for people to be able to read the names of each eration of small, single- interest parties which and every candidate and would effectively have would lead to groupings that would make it disenfranchised millions of our people who had very difficult to govern in the broad national -in been hardest hit by Apartheid. terest. But we said no to a threshold. We didn’t want anyone to say that this wasn’t their Consti- Proportional Representation (PR). What we im- tution; only an ANC one. And as things turned mediately noticed about PR was its fluidity and out, if we had gone for a two per cent threshold, adaptability to South African conditions. In par- the Democratic Party, the PAC, and the Freedom ticular, it would allow parties to have a mode of Front wouldn’t have made it into the Constitu- representation in Parliament that went beyond tional Assembly. the locked-in, ghetto-like representation that the single-member constituency system would pro- Our understanding at the time was that our task duce and would reflect the diversity of the nation. was to ensure that a truly representative and all- embracing CA be elected to draft the country’s It would fit in well with the ideal that ‘the people new constitution. It would be up to the CA, then, shall govern’. It would enable us to promote the to make the final decision on which electoral development of a national vision that would take system to have. Our thinking at the workshop UMRABULO NUMBER 51 | 2021 U was that something on the lines of the German devise an electoral system that, in keeping with system would be best. It would secure all the a determination by the Constitutional Court, advantages of PR, while introducing strong ele- would allow independents outside of any po- ments of direct local accountability. litical party to stand for election at national and provincial level. I later stepped down from the National Execu- tive Committee and the Constitutional Commit- PS:-. I featured in an amusing moment at the tee of the ANC and withdrew from party politics workshop. We had almost invariably found that because I wished to be considered for appoint- proposals from mainstream American political ment to the Constitutional Court. As a result, I scientists were unduly skewed towards secur- was not a member of the CA and cannot say why ing some form or other of white minority veto. a mixed system along the lines of the one used Still, we thought it would be courteous to accept in Germany was not chosen. It might have been an offer from the US Consulate to arrange for a that the first election had gone so well that a de- number of distinguished American academics to cision was taken not to tamper with the system phone in their proposals for an electoral system that had produced it. in South Africa.

However, by stating that the electoral systems Professor Donald Horowitz informed us of what for the National Assembly and provincial legis- he believed was the most important thing that latures should “in general result in proportional rep- we needed. He stated that “Lawyers always say, resentation”, the CA expressly left open the pos- ‘On the one hand you should do this, on the other sibility of having a mixed system. Whatever the hand you should do that.’ What you need in South motivation, we in fact ended up having a mixed Africa is a one-armed lawyer.” In the days before system at the municipal level only. What is being Skype and Zoom, he couldn’t understand why debated now is how, broadly speaking, to ensure he heard an eruption of loud laughter in the that, within the framework of the constitutional room. requirement to maintain PR in general, members of the national and provincial legislatures can be The ANC already had a one-armed lawyer who 9 held more accountable to their electors. A very had lost an arm to a bomb placed in his car by specific element of this wide question is how to apartheid security agents. It was me. U UMRABULO NUMBER 51 | 2021 Changing Electoral System Talks is a Much Ado About Very Little Changes

■ “Since the country is not forced to choose a new electoral system, is there any reason why it should want to do this?...

… there is a problem with this sort of reasoning – and much of what we hear about electoral systems. It is based on armchair logic which makes sweeping statements about how voters and politicians behave based on ‘common sense’, but never on a concrete analysis of how real people behave in the real political 10 world.”

By Professor Steven Friedman University of Steven Friedman

F we all lived in textbooks, chaired by former minister Valli we could make democ- Moosa to look at this issue. racy work for South Af- rica’s people by changing The only option which appears Ithe electoral system. Since we to not be under discussion is live in the real world, we need keeping the system as it is. to look elsewhere for remedies. First, it is assumed that to do this would ignore the court rul- A judgment by the Constitu- ing – which, of course, must be tional Court1, which ruled that respected if we are to preserve independent candidates must our constitutional democracy. be allowed to stand for provin- cial and national office and that the law must be Second, we are told repeatedly that a new sys- changed within two years to allow this, has re- tem is essential if our democracy is to work as vived an old favourite of campaigners. It is now it should. This article will argue that the court assumed by just about all political insiders that ruling does not mean that a new electoral sys- the court’s ruling means that the system must tem is essential – and that changing the system change and there is now a lively debate on what is unlikely to make elected representatives and those changes should be. The Minister of Home leaders any more accountable to the people than Affairs has appointed an advisory committee they are now. UMRABULO NUMBER 51 | 2021 U

Jumping to Conclusions Contrary to the claims of the campaigners, the court ruling said nothing about changing the electoral system.

It found that the Electoral Act is unconstitutional ‘to the extent that it requires that adult citizens may be elected to the National Assembly and Provincial Legislatures only through their membership of politi- cal parties’. It then gave Parliament two years to remedy this.2 This obviously says nothing at all about electoral systems. Since the judgement, the impression has been created that it is impos- sible to allow independents to stand within the contest since they are unlikely to get much of a current system and that a new system is the only return on their investment. way to implement the judgement. But that is not true. As long as the rules which currently apply to parties also apply to independents, it is hard to Since 1994, national and provincial elections see the ballot paper expanding by much. And have been contested by individuals who, in ef- the import of the judgement is surely that they fect, turned themselves into parties. An early should ne included on the same terms. The example was the KISS party whose founder judgement could, therefore, be implemented by seemed to be its only member3. Bradford Wood, keeping the system unchanged except that indi- who had appeared in a TV series, contested an viduals who wanted to stand would no longer election as The Organisation Party.4 There are have to form make-believe parties. other examples. 11 The only reason they formed parties may have Dubious Benefits been because the rules said that they must – it Since the country is not forced to choose a new was the only way they could get onto the bal- electoral system, is there any reason why it lot paper. If that rule was scrapped, they could should want to do this? run as independents and the judgement would be implemented. The ‘common sense’ claim is that we must change the system to ensure that elected repre- The usual objection to this is that the ballot pa- sentatives are more accountable to the people. per would resemble a phone directory as hun- At present, we are told, they are only account- dreds of independents registered to stand. But, able to the party leaders and structures which as the examples mentioned here show, an indi- decide where they will be placed on the list. The vidual who wants to stand under the current cure is to make them directly accountable to vot- rules simply has to invent a party and get a few ers by ensuring that they can vote for a person, friends to sign up for the party list. Since is that not a party. Despite this, few if any of the voices easy, why were there not hundreds of these one- in the debate are arguing that we should move person parties on the ballot? to a first-past-the-post system in which the coun- try is divided into constituencies and the candi- The reason is that it is not easy to contest a na- date who wins most votes in each is elected. This tional or provincial election. For a start, you would not be possible unless the constitution is need to find R200,000 to contest a national elec- changed – it says that elections must ‘result, in tion and R45,000 for each province – very few general, in proportional representation’.6 In- people are prepared to shell out that amount of stead, they advocate a ‘mixed system’ in which money simply to see their names on a ballot pa- there will be both constituency and proportional per. Small parties (independents in all but name) representation. This is meant to offer us the ad- have never done well in provincial or national vantages of direct election of candidates as well elections. In the last election, parties who failed as proportionality. to win enough support to keep their deposit for- feited R16,7m to the public coffers.5 This is a fur- All of this sounds sensible but there is a prob- ther reason why independents will not flock to lem with this sort of reasoning – and much of U UMRABULO NUMBER 51 | 2021

what we hear about electoral systems. It is based there is a party which speaks for them. on armchair logic which makes sweeping state- ments about how voters and politicians behave This brings us to the second point – the claim based on ‘common sense’, but never on a concrete that changing to a system in which voters can analysis of how real people behave in the real vote for candidates as well as parties would political world. Once we look at real world poli- make representatives more accountable to vot- tics, we see both that moving away from propor- ers. Unfortunately, this ‘common sense’ view tional representation does not necessarily make does not describe reality. representatives more accountable and that the mixed system which offers us the best of both Direct election does not necessarily mean more worlds does not exist anywhere. accountable government.

To take the second point first because it is less South Africans should not need to look to inter- important. national examples to see that this is so – we have one in our own back yard. Local government is To say that a system must provide for direct elec- elected using a mixed system but it is not more tion and reward parties in proportion to their accountable than the other two spheres. In fact, share of the vote sounds good in theory, but in voters tend to believe that this sphere is the least practice all mixed systems stress one at the ex- accountable,8 which is why it is the constant tar- pense of the other. To illustrate, the Electoral get of protest.9 It is one of the marvels of our po- Task Team chaired by the late Frederick van Zyl litical debate that we still continually hear that Slabbert proposed that the present system for more direct election always makes government electing members of the National Assembly be more accountable when we have living proof replaced by 69 multi-member constituencies and that this is not true in the places where we live. 100 members chosen by proportional representa- 12 tion.7 A quick calculation shows that this means In Brazil, a proportional system which allows that each constituency would comprise around voters to choose candidates as well as parties 380 000 voters. Since each constituency would enables corruption because candidates need have around four members, each representative money to win election and they get it by mak- will serve around 90 000 people. Clearly this is ing deals with the wealthy. They are accountable not going to come close to offering the close con- to the rich and not to the people who voted.10 tact between representative and voters which In the United States of America direct election direct election is meant to offer. within parties as well as in elections at all lev- els of the system produced an extremely unac- So, if we want that closeness, we have to increase countable system.11 the number of constituencies. But that means that there will be fewer members elected by each Nor is it necessarily true that direct election constituency and the result will be less propor- means that representatives are no longer depen- tional. If only a quarter of members are elected dant on their party leadership to gain election. proportionally, it might make up for some of the In Australia, parties issue ‘how-to-vote’ cards to distortion, but not all of it. So, choosing a mixed supporters telling them who to vote for and in system does not free us from choosing between which order and voters usually comply. In Italy, being fair to parties and direct election of people. parties issue similar ‘advice’ which is almost al- ways obeyed.12 These examples are particularly This is important because most people who relevant to this country because it is the power advocate a mixed system seem to feel that this of party leaderships here which often ensures means that they don’t have to choose between that ward councillors are far more accountable direct election and being fair to parties. But, in to those leaders than to voters. reality, choices have to be made – either it is more important to ensure that each party wins the number of seats to which its vote entitles it The Wrong Cure or to create a direct relationship between voters These examples do not mean a system in which and elected representatives. It could be argued voters choose candidates as well as parties is less that a system which allows small parties to win accountable and more prone to the influence of seats is superior because more voters feel that big money than our current system. UMRABULO NUMBER 51 | 2021 U

What it does mean is that the claim that we can or three main parties and changing the electoral ensure a more accountable democracy if we system will not change this. change the election system peddles an illusion. In some countries, systems not that much differ- Far more important, it will not change the reali- ent to the one we have now ensure accountable ties which create dissatisfaction with the current government, in some they don’t. There are coun- system. Accountability is a huge problem here tries in which direct election does offer more ac- – although, contrary to what we are often told, countability – we have just seen that there are it is far more of a problem in townships and others in which it does not. The obvious conclu- shack settlements than suburbs. The problem sion is that it isn’t the electoral system which de- is not that politicians are accountable to no one. cides whether we have accountable government It is that they are more accountable to those in but a host of other factors. society who wield power and make themselves heard which excludes many who were disad- A while ago, a political scientist who studied vantaged by apartheid. electoral systems in Africa found that propor- tional representation and direct election systems The reasons for this have nothing to do with the produced roughly the same results.13 In all the electoral system. They are, rather, a product of countries he studied, the geographic vote was the reality that democracy has changed less in crucial. People in particular areas tended to this country than it should have. Among the rea- vote overwhelmingly for particular parties. This sons are poverty and inequality, the fact that the meant that whatever system was used, the re- suburbs have more power than the townships sults looked much the same. and that, despite changes, where people live still largely shapes how they vote. If we want a stron- South Africa is similar to the countries he stud- ger democracy and a fairer society, we need to ied. While party politics has become more fluid, begin tackling these problems. But changing the party loyalties are still strong. This explains why, electoral system will not change them. All it is after a quarter century of proportional represen- likely to do is distract attention from what we 13 tation, our politics resembles that of constitu- really need to do. ency systems in the textbooks. It has only two

References

1. New Nation Movement NPC and Others v Presi- 8. Karl Von Holdt, Malose Langa, Sepetla Molapo, dent of the Republic of South Africa and Others Nomfundo Mogapi, Kindi Ngubeni, Jacob Dlamini (CCT110/19) [2020] ZACC 11; 2020 (8) BCLR 950 and Adele Kirsten The Smoke That Calls: Insurgent (CC); 2020 (6) SA 257 (CC) (11 June 2020) Citizenship, Collective Violence and the Search 2. ‘New Nation Movement’ for a Place in the New South Africa Johannesburg, Centre for the Study of Violence and Reconciliation, 3. Vivian Warby ‘KISS Goodbye’ Independent on Line Society, Work and Development Institute, July 2011 April 25 2009 https://www.iol.co.za/news/politics/ kiss-goodbye-441347 9. Scott Mainwaring Politicians, Parties and Electoral Systems: Brazil in Comparative Perspective 4. Electoral Institute for Sustainable Democracy in Africa (EISA) ‘South Africa: Parties at National 10. Helen Kellogg Institute for International Studies, Level:2004 election’ https://www.eisa.org/wep/soup- Notre Dame, Working Paper no141 - June 1990 arties4.htm 11. Pat Tucker and Kathlena Walther (eds) Electoral 5. Phillip de Wet ‘The IEC made R16.7m for SA from Systems and Accountability – Comparative Case the massacre of minor parties in the 2019 election’ Studies. Considerations for South Africa, The Forum Business Insider South Africa May 13 2019 https:// for Public Dialogue, Johannesburg, 30 June 2014, www.businessinsider.co.za/failed-small-parties- p.94 made-the-election-commission-big-money-in- 12. Tucker and Walther (eds) ‘Electoral Systems and 2019-elections-2019-5 Accountability’ p.23 6. Constitution of the Republic of South Africa Sections 13. Joel Barkan ‘Rethinking the applicability of propor- 46(1)(d), 105 (1) (d); 157 (3) tional representation for Africa’ in Timothy Sisk and 6. Report of the Electoral Task Team January 2003, Andrew Reynolds (eds) ‘Elections, and Conflict Government Printer, Pretoria, 2003 Management in Africa’. Washington DC, United States Institute of Peace Press 1998 7. Idasa, Afrobarometer, Key Results of the Afrobarom- eter Round 5 Survey in South Africa June 21, 2012 U UMRABULO NUMBER 51 | 2021 PROSPECTS FOR AN ACCOUNTABILITY BASED ELECTORAL SYSTEMS

■ “There is clearly a tension between the imperative to have a fair and inclusive electoral system and having an electoral system which facilitates accountabili- ty. The Van Zyl Slabbert Report majority view proposed that ‘a preoccupation with accountability should not jeopardise the values of fairness, inclusivity and simplicity’. But the converse is also true.”

By Lawson Naidoo Executive Secretary of the Council for the Advancement of the South African Constitution 14 @CASACZA @CASACZA www.casac.org.za

T was called a game-chang- which has the potential to er. Victory for democracy deepen democracy in South Af- and peoples’ power, her- rica if we take the opportunity alding an era of ethical to move beyond the confines of Igovernance. The end for impu- the judgment and overhaul the nity and state capture, weaken- electoral system. But it is not as ing the power of party bosses. straightforward as might ap- These were some of the epithets pear on the surface. For there to that greeted the judgment of the be substantive electoral reform Constitutional Court in the New there are other issues that must Nation Movement’s case that be resolved to determine the was delivered in June 2020. kind of electoral system needed to address the democratic challenges that we The judgment declared aspects of the Electoral face in South Africa. The judgment is a step to- Act unconstitutional to the extent that they do wards reform - a step that is long overdue. not make provision for individual candidates to contest elections to national and provincial leg- The van Zyl Slabbert Task Team submitted its islatures. Parliament was directed to amend the report to Cabinet in 2002 and it is only now that Electoral Act to correct this deficiency. It is some- we are picking up its cudgels and beginning to what ironic that political parties currently repre- engage in a national discourse about the kind sented in Parliament have the responsibility to of electoral system that may be appropriate for craft legislation to enable individual candidates South Africa today. to challenge them (i.e., political parties). The New Nation Movement case comprised This was undoubtedly a landmark judgment two separate concurring judgments delivered UMRABULO NUMBER 51 | 2021 U by Justices Mbuyiseni Madlanga and Chris Jafta Committee comprised of experts and chaired by and a dissenting judgment from Johan Frone- Valli Moosa to consider option for electoral re- man. The majority declared that certain parts form. Although belated, this is a welcome devel- of the Electoral Act of 1998 undermined the po- opment. Tthe issue of electoral reform is far too litical right of ‘every adult citizen … to stand for important to be left solely in the hands of poli- public office” as enshrined in section 19 (3)(b) of ticians, although they will ultimately make the the Constitution as well as the right to freedom decision. The Committee is canvassing opinions of association in section 18. They determined from interested stakeholders, and it is expected that section 18 includes an implied right not to that its recommendations will be submitted to join an association – so to be compelled to join the Portfolio Committee on Home Affairs in the or form a political party to contest elections was National Assembly. found to be unconstitutional. Justice Johan Fro- neman adopted a contextual and purposive ap- In its submissions as amicus curiae in the New Na- proach in interpreting s.19 rights - arguing that tion Movement case, CASAC argued that Parlia- political parties play a central role in our democ- ment is best placed to determine the most appro- racy, and that individual political rights can be priate electoral system for the country - noting exercised without changing the electoral system. that Parliament is constitutionally obliged to fa- He was of the view that Parliament could amend cilitate public participation - as this is primarily the electoral laws to provide for individual can- a political rather than a legal judgment. Justice didates, as it had done at a local level, but this Madlanga confirmed this in stating, “a lot was is not something that is constitutionally pre- said about which electoral system is better, which sys- scribed. tem better affords the electorate accountability, etc. That is territory this judgment will not venture into. The majority found that elections limiting par- The pros and cons of this or the other system are best ticipation to party lists should have ended after left to Parliament.” the 1999 elections. Parliament failed to do so, de- spite the report prepared by the Van Zyl Slabbert In other words, the judgment does not mean 15 Task Team. That report was not referred for con- that we will have a Westminster-style constitu- sideration by Parliament and public, and Cabi- ency system, nor does it mean we will have a net endorsed the minority opinion which pre- directly elected President, Premier or Mayor. In ferred the continued use of the existing system developing a new electoral system Parliament that was in place since 1994 - the closed party list will be constrained by some existing constitu- and proportional representation (PR) system. It tional measures. Firstly, the Constitution pro- should be borne in mind that there was no elec- vides that the President is elected by members toral register in 1994, and it would have been of the National Assembly at its first sitting after a impossible to develop one in time. So, a simple general election, or whenever a vacancy occurs. PR system made perfect sense, but the Interim Secondly, that any electoral system must “result, Constitution approved this for only the first two in general, in proportional representation”. A elections, whereafter a review of the electoral ‘first-past-the-post’ constituency model will not system was mandated. be compatible with this constitutional provision.

The Constitutional Court has given Parliament Our existing constitutional framework clearly twenty-four months to amend the Electoral Act, favours a broad proportional representation a deadline that will expire in June 2022. There model because it produces a more inclusive has been some concern that the time is insuffi- outcome in which all votes matter, and thereby cient, but I would remind readers that a whole promotes national unity and reconciliation. This new Constitution was debated and finalised in is seen in the current National Assembly which the same timeframe between 1994 – 1996! There comprises 17 political parties, the smallest be- is no reason why Parliament cannot make the ing Al-Jama which garnered just over 31,000 necessary amendments to the Electoral Act in votes. Thirdly, the Constitution limits the size of two years. The court was firm in its view that the National Assembly to between 350 and 400 the new electoral system needs to be in place for members. Any deviation from these prescripts the 2024 national and provincial elections. will require constitutional amendments. But if we are to overhaul the electoral system, these In March 2021 the Minister of Home Affairs, Aar- constitutional constraints should not be an in- on Motsoaledi, appointed a Ministerial Advisory surmountable barrier and may be reviewed. This U UMRABULO NUMBER 51 | 2021

is a ‘once-in-many-lifetimes’ opening to craft a level towards changing the existing political mechanism for choosing our representatives in a culture. These relate, inter alia, to internal party manner that strengthens our democratic culture. matters including the constitutions of political parties aligning with constitutional imperatives CASAC has long argued that Parliament needs and ensuring that there is sufficient internal par- to engage with the report of the Van Zyl Slab- ty democracy. This is important especially in the bert Task Team. And not because we agree with context of parties being recipients of large sums its majority view or even minority one. But that of public funds allocated to them by Parliament we need to have a public debate on the kind of in terms of the Constitution – this is now encom- electoral system that can enhance our democra- passed in the Political Party Funding Act, 2018. cy. Parliament’s own High-Level Panel chaired To justify public funding, parties should submit by former President , also to a level of regulation by the state. urged Parliament to review and amend the Elec- toral Act to provide for some a constituency sys- Let us now look at the three types of electoral tem. Parliament regrettably failed to do so. systems, and how they impact on these values.

Any electoral system must embrace the values of Constituency systems are often advanced as the fairness, inclusion, simplicity and accountabili- best way of holding MPs accountable. Certainly, ty. The idea of fairness, combined with the con- the “Westminster” model helps to build a direct stitutional requirement for general proportion- link between the constituent and her representa- ality, militates against pure constituency-based tive. The voter knows exactly who their MP is systems, as they do not provide equal value to and can extract accountability from this repre- all votes that are cast. Those votes that went to sentative at the ballot box. However, it cannot be a losing candidate would simply be ignored in seen as a panacea to problems of accountability such a system. Inclusivity similarly constricts as outcomes are often dependent on issues ex- desirable scope, as most constituency systems ternal to the electoral system. For instance, the 16 are explicitly exclusive of smaller parties, espe- relationship between the parties and representa- cially those not geographically concentrated. tives and the parties and the electorate modify behaviour. MPs in the UK House of Commons The issue of simplicity implies we should be are often very strictly whipped and will vote cautious about excessive restructuring of how against the preferences of their constituency if votes are allocated and counted in electoral party allegiances demand. systems, especially in more complex systems like STV (single, transferrable vote) and ranked Similarly, the partisan identification of the elec- choice voting. These would require a higher de- torate changes how MPs are able to act and how gree of voter education to enable voters to cast much power they hold vis-à-vis the party they votes meaningfully. form part of. If an MP is elected in a constituency with strong partisan allegiance to their party, the There is clearly a tension between the impera- odds of them rebelling against their party de- tive to have a fair and inclusive electoral system clines, as winning re-election as an independent and having an electoral system which facilitates is unlikely. Strong partisan identification also accountability. The Van Zyl Slabbert Report ma- allows parties to “parachute” party elites into jority view proposed that “a preoccupation with safe constituencies, which harms the constitu- accountability should not jeopardise the values of ent-representative bond. Constituency systems, fairness, inclusivity and simplicity”. But the con- especially those requiring only vote pluralities verse is also true. (first-past-the -post), are harmful to inclusivity and reduce the number of effective parties in the This was an issue that was expounded in a paper legislature and may make the votes of some vot- commissioned by CASAC in 2015 in which Prof ers subjectively “more important” in individual Steven Friedman looked at the issue of account- elections where swing constituencies are key. ability and electoral reform, and whether reform of the electoral system would automatically en- On the other end of the spectrum, proportional hance accountability. His conclusion was that representation (PR) systems vest almost exclu- electoral reform may be necessary, but it is not sive power in the political party, not the elected a sufficient tool to ensure accountability. Fried- representative. This negates accountability for man argued that we need to engage at a deeper individual MPs as accountability is effectively UMRABULO NUMBER 51 | 2021 U delegated to the entire party structure rather allow for the direct MP-constituent relationship, than to the MP. South Africa’s closed list system whereas the PR system allows for proportionali- is possibly the most generous to political par- ty and gives balance and representation to small- ties and to party bosses, as they are effectively er opposition parties. The key question in this at liberty to bring MPs in and out of Parliament regard is whether we opt for a Mixed-Member as they please. We saw a recent example of this system as proposed by the van Zyl Slabbert Re- in the Kwa-Zulu Natal Legislature where the port (i.e., where the compensatory PR list makes former eThekwini Mayor, Zanele Gumede, who up for imbalances in the constituency system) is facing charges of corruption and fraud, was through the allocation of the seats from a closed elected as a member of the Provincial Legislature party list or a Parallel List system (where there as a result of the ANC changing its electoral list is a separate PR system to the constituency sys- for that Legislature, and was able to parachute tem). In our current context the Mixed-Member her in ahead of other candidates who had pre- compensatory system is the most congruent viously been on that list. This demonstrates the with the Constitutional imperative to deliver power of political parties that can manipulate general proportionality. electoral lists and deploy people as they see fit. Slabbert proposed 69 multi-member constituen- The current system has not successfully built cies, each electing between 3 and 7 MPs depend- much of a rapport between MPs and the elector- ing on the size of the voter base. This would per- ate, despite the informal ‘constituency system’ mit individual candidates to contest elections that exists and funded, at least in part, from the in these constituencies which would elect 300 fiscus. One might be tempted to conclude then, members of the National Assembly with an ad- that PR systems are ineffective in achieving ac- ditional 100 members elected from a party list countability. Again, however, there are externali- system. Given that the demarcation of constitu- ties that can modify the behaviour of this sys- encies is a drawn out, complex and inevitably tem. For instance, a system like South Africa’s controversial subject, using existing municipal (with no ‘threshold’ and pure PR) lowers the boundaries may provide a ready-made solution. 17 cost of entering opposition or forming party However, the large size of each of these constit- splits, which allows for increased internal ac- uencies may only create an illusion of bringing countability in parties. So, the threat of a defec- representatives closer to the electorate. We cur- tion or a split may in fact enhance accountability rently have a multi-member system if we con- to some extent. It also allows voters wishing to sider that each of the provinces is a constituency punish the incumbent to coordinate votes fair- in the National Assembly. Would increasing the ly easily, as any anti-incumbent vote counts (in number of constituencies from 9 to 69 really cre- constituency systems, this form of tactical vot- ate a closer nexus with the electorate? ing is much harder). PR is also a very inclusive and fair method of apportioning representation, The existing local government election system given it is the most accurate way of representing delivers a mixed system with a 50/50 split be- an electorate’s preferences. tween ward counsellors and PR counsellors. It has allowed independent candidates to stand The natural conclusion may be: why not have for office, albeit with limited success in compet- both systems? ing with established political parties. The local government system also makes it clear that the Before dealing with this it is also worth stating design of the electoral system does not ensure that globally, where there have been moves re- accountability or inclusivity: these values have cently towards reform of the electoral system, not been realised in the mixed system, and some it has been to move away from constituency might claim that local government has been less systems towards proportionality because it is accountable and inclusive than the national and seen as producing fairer electoral outcomes. We provincial levels. This underlines the need to would be bucking this trend by moving away change South African political culture in search from a pure PR system towards some form of a of greater accountability, and not to see the elec- constituency system or hybrid model. toral system as a quick fix.

Mixed member or hybrid systems are increas- In conclusion, the judgment opens the door to ingly in vogue and seem to deliver a “best of both craft a new electoral dispensation; it is not a worlds” outcome: the constituency system can panacea for boosting accountability and ensur- U UMRABULO NUMBER 51 | 2021

ing clean governance. Key among the answers we must find is how we strengthen the institu- The foundational constitutional value of respon- tional law-making and oversight capacity of leg- siveness has proved most elusive. As Van Zyl islatures, and how we ensure that those we elect, Slabbert pointed out in his report, “….no electoral be they from parties or individuals, are held ac- system can compel an elected representative to behave countable between elections. democratically, take care of a constituency or party responsibilities, or be a disciplined, dedicated member The choice comes down between a multi-mem- of parliament.” That is a responsibility that ulti- ber constituency model and a single member mately rests with us, the citizens of South Africa. constituency. Within the latter the choice is be- tween a plurality (winner is the one with most Finally, when applying our minds to amending votes) or majoritarian (requiring 50%+1) first- the electoral system, we should note that South past-the-post model. Africans have a declining relationship with elec- tions. Less than half of the voting age population The majoritarian model would require a rank- voted in last year’s elections, and voter turn-out ing STV system or a run-off between the top two and has been declining steadily since 2009. Clear- candidates and is therefore more complex. The ly South Africans decreasingly see elections as a plurality model is simpler but undermines the means to express their views, interests and pref- proportional nature of the outcome. Either of erences. We have instead exercised the rights to these would be complemented by a PR list, and assembly, demonstration, picket and petition. It here the choice is between a compensatory list or is particularly poignant to note that of the 9 mil- a separate PR vote. The compensatory list would lion South Africans who failed to register for the allocate votes according to the party whose can- 2019 national elections, 6 million were aged be- didate one voted for in the constituency so there tween 18 and 29. The opportunity now exists for would be one ballot paper with independent reform of the electoral system to begin to turn candidates votes not reflected in the PR list. The that around and promote greater participation 18 separate PR vote allows voters to make indepen- in elections, especially by young voters. dent choices of candidate and party. UMRABULO NUMBER 51 | 2021 U From The Unconstitutional To The The Constitutional - A Refined South African Electoral Model

■ “Accountability is strengthened when representatives are closer to the electorate. Knowing one’s representative and thereby having greater access to him/her, strengthens the voter/representative nexus.”

By Daryl Swanepoel CEO at Inclusive Society Institute 19 @InclSocietyInst @inclusivesocietyinstitute www.inclusivesociety.org.za

HE Constitutional • be simple for the Indepen- Court, in June 2020, dent Electoral Commission declared the current (IEC) to implement and for Electoral Act uncon- voters to understand; and stitutional since it does not al- T • promote gender parity, de- low for independent candidates mographic and geographic to stand for election to national inclusiveness, and repre- and provincial legislatures. It sentativity and improved gave Parliament two years to accountability to the voter. remedy the defect.

To this end, the Inclusive So- In essence, the institute needed ciety Institute designed a pro- to decide between: posed new electoral system that would respond • A winner takes all, single-seat constituency to the Court’s ruling, but which would also rem- approach; edy shortcomings under the existing pure pro- • Simplistic proportional representation (PR); portional model. and It needed to: • A hybrid model that accommodated constit- • accommodate independent candidates; uencies, with a compensatory proportional list allowing for overall proportionality to be • reflect, in general, proportionality; established. • require no, or minimal, amendments to the constitution; The single-seat constituency approach was re- U UMRABULO NUMBER 51 | 2021

jected as it would not make it possible for the results in a quota per seat. outcome to reflect proportionality. It would also not accommodate sufficient diversity. Ballot papers, candidates and seat The simplistic PR model would, in turn, be im- allocation practical. Imagine the length of a ballot paper There will be one ballot paper in each MMC, should, say 100 independent candidates, wish comprising the names of the parties, followed by to stand nationally in addition to the 48 exist- the names of the independent candidates. This ing political parties. It would also not advance is a departure from previously proposed hybrid geographic representation and will do little to models, which have suggested two ballot papers improve representativity and accountability to – one for the MMC candidates and one for the the voters. PR list. In this model the combined number of votes cast for party candidates, across all MMCs, Thus, the model proposed is a 400-seat National determine its proportional share of the 400 seats Assembly of which 300 are allocated to multi- in Parliament. member constituencies (MMCs) each comprised of three to seven members. MMCs will be sup- The voter will cast a single vote for either the plemented by a proportional list of 100 seats, party or the independent candidate. Seats in the which will be used to ensure overall proportion- MMC will be allocated proportionally, based on ality in terms of the total number of votes cast the number of votes received for each party or for parties. independent candidate. Parties will be permit- ted to nominate a number of candidates equal to the quota size of each MMC plus one. Prior to Structure the election the parties and the IEC will publi- There will be two components to the establish- cize the names of all candidates so that the elec- ment of the legislature. The first would be rep- torate will know the incumbents prior to exercis- resentatives elected via 66 MMCs. The second ing their votes. 20 component will comprise representatives elect- ed via the compensatory PR list. Should an independent candidate receive enough votes to be elected, he or she will qualify. It’s necessary to have at least three members per Party candidates are allocated in order of their MMC to promote diversity within each MMC. appearance on the list for the party in the par- But too large a number would be counterpro- ticular MMC. ductive in terms of promoting geographic repre- sentativity, or for bringing representatives closer Gender parity is promoted by requiring parties to the electorate. Accountability is strengthened to alternate their candidates based on gender, when representatives are closer to the elector- that is man followed by woman, or vice versa, ate. Knowing one’s representative and thereby on the ballot paper. This will, however, be dif- having greater access to him/her, strengthens ficult to engineer amongst independent candi- the voter/representative nexus. Thus, the maxi- dates, since they represents only themselves. mum number of seats per MMC, is suggested as seven. If independent candidates obtain more votes than required for election, the surplus votes are MMCs will be demarcated along current dis- discarded, in that a single individual cannot be trict and metropolitan municipal lines. Where more than a single individual. Thus, only parties the number of voters within a district is too few will compete for seats on the compensatory PR to warrant at least three representatives, two or lists. As already alluded to, the aggregate num- more districts can be added together. Where the ber of votes received by a party will determine number of voters within a metropolitan council its proportional share of the 400 parliamentary are too many, MMCs can be allocated along sub- seats. This implies that parties receive an addi- council or metropolitan regional lines. tional proportion of the excess votes forfeited by the independents. Parties could, therefore, Each vote cast should carry equal weight. There- be marginally advantaged. This is warranted, in fore, in determining the borders of the MMCs, that absolute proportionality is not possible with the total number of registered voters will be di- the introduction of independent candidates. vided by 300 (the number of MMC seats), which UMRABULO NUMBER 51 | 2021 U

Furthermore, it does not come at the expense olds might in some cases actually be lower than of the independents, in that it does not dimin- the percentages prearranged, depending on the ish the legitimate claim that any one indepen- actual vote distribution among parties and in- dent candidate may have, that is, him- or her- dependent candidates. Nonetheless, the values self represented in Parliament. Also, alternative mentioned will guarantee a seat. Therefore, if remedies are available. Should the independent independent candidates obtain more votes than candidates wish to lay claim to the additional required for election, the surplus of votes is dis- votes cast over and above that required to se- carded, in that a single (independent) individual cure a single seat in the legislature, they could cannot be more than a single individual. arrange themselves as a group, in reality a party, and register at the IEC as such. This is justified, in that the Constitutional Court must have foreseen that absolute proportional- Consideration was given to the open list system, ity is not possible with the introduction of inde- that is where voters select their specific candi- pendent candidates, and thus a higher reliance date of choice, and the individual candidates would by necessity have to be placed on the no- (party or independent) who then receive the tion of general proportionality. most votes qualify. However, it is felt that this option best be left until later, when voters have become more accustomed to the new system. How parties/independent candidates get ballot paper access In the first instance, the closed list system would In this regard it is proposed that parties already ensure procedural simplicity. In the second in- in Parliament automatically qualify with no fur- stance, whereas gender parity could be promot- ther requirements. ed by requiring parties to alternate their can- didates based on gender, that is man followed For new parties, whilst consideration was given by woman, or woman followed by man, on the to a monetary fee and/or a certain number of ballot paper. Under an open list system the out- seconding voters, the notion of a monetary fee come cannot be engineered in that the outcome should be rejected, in that the system should not 21 is wholly dependent on the voting pattens of the be weighted in favour of the well-resourced. In- electorate. And thirdly, it is about practicalities. stead, a certain number of seconding voters is Under an open list system, the names of all can- proposed. For example, votes in the previous didates – party and independents – will have to election divided by 400, for automatic access to be printed on the ballot. In a seven-seat MMC, register candidates in all MMCs (with specific competed by say the same number of parties candidate lists for each MMC) and to have ac- as in 2019 (48) and 5 independents, this would cess to a share of the proportional seats. The fig- require up to 341 names on the ballot paper. It ure as it stands now, would be 43 591. would require a booklet, and at this juncture will be too complex to administer or for the elector- In MMCs, a local party should have access to ate to understand. register for running candidates in a particular MMC, if it has seconding voters equal to 1% of No threshold for a party to qualify to take up the registered voters in the MMC. Based on cur- seats in the legislature is being proposed. This rent registered voter numbers, in a three-seat is because in the MMC a “natural” threshold is MMC the number of signatures might be around at play. In a 7-seat MMC, a party or a candidate 2 500 to 3 000 signatures, and in a seven-seat with more than 7.15% of the vote is guaranteed MMC the number will be between 5 000 and 6 a seat. In the 3-seat constituencies the natural 000 signatures. threshold guaranteeing a seat is 16.67%. The idea is that a small party (or independent candidate) For individual candidates, the same rules apply cannot lose the last seat in the MMC to a big par- as for new parties at the MMC level, given that ty winning all votes other than what the small independent candidates can only stand within a party (independent candidate) wins, as long as single MMC. the votes for the small party (v) is more than what the big party wins, divided by five (the The requirement for independent candidates divisor for the three seats). So, the small party’s and new parties to obtain seconding voters will vote share (v) must be bigger than (100 – v)/5 inevitably require additional procedures and re- (which is 100/6 or 16,666%). The actual thresh- sources for the IEC to administer. They will have U UMRABULO NUMBER 51 | 2021

to, for example, check that seconding voters are ommendation thereon. It does however legitimate, registered in the MMC, and that they recognise that some 30% of potential voters have personally agreed to the secondment. Nev- remain outside of the electoral system and a ertheless, the seconding route is preferred over a concerted effort is required to motivate them financial fee for the reason mentioned. The IEC to participate in future elections. is well-acquainted with the procedures, albeit In the age of digitisation, there could be some currently at much lower intensity. synergy between the Department of Home Affairs and the IEC, where Home Affairs au- Threshold to qualify for tomatically funnels data to the IEC for inclu- representation in Parliament sion into the IEC’s voter register. As already mentioned, for tier one, no formal • Can a candidate stand at both national and threshold is proposed, as is the current position. provincial level? The same applies for tier two, where no formal Party candidates, yes. Individual parties will threshold is proposed, in that the low number of however set their own internal rules as to seats in the MMCs (three to seven) provide for a how they wish to approach the matter. Al- high natural threshold at the MMC level. though, whilst they can stand for election at both the national and provincial level, if Ancillary matters elected to both positions, they will have to choose in which level they wish to serve. A number of further technical issues were also They can only take up one seat. considered: Independent candidates, no. An indepen- • What happens if a vacancy arises and the dent candidate will have to select whether names on the MMC lists (and indeed com- he or she wishes to run for a seat at either pensatory PR lists) are exhausted? provincial or national level. This is because It is proposed that the IEC, in such instance, no person may receive two salaries from the 22 allow parties to supplement their lists. The state, and it will not be in the voters best in- solution for filling vacant independent can- terest since he/she will not be able to devote didate seats is, however, somewhat more sufficient attention to both positions. complex. The seat could either remain va- cant, or some other mechanism and/or sys- tem of by-election will have to be considered. Conclusion The modelling exercise undertaken by the insti- • Can a candidate stand in both an MMC and tute found that the proposed system does not on the compensatory PR list? negatively (or positively) impact any party. It It is argued that this is a matter for parties shows that the existing power ratios between themselves to determine. Of course, inde- parties would be maintained. It also shows the pendent candidates can only compete in the geographic spread of seats, continue to reflect MMC, where they register for participation. the strongholds of the individual parties.

• What about progressively advancing racial, The model being proposed by the institute there- ethnic, sexual orientation, etc, representa- fore not only gives effect to the constitutional re- tion through the ballot? quirement of accommodating individual candi- This matter is an overly complex one and dates, but it also goes some way to address clear no precedence exists. It may also be too pre- voter desires to be able to hold their representa- scriptive. It is a matter best left for parties to tives more accountable. It also does so in a way decide. That said, in that independent can- that the benefits attached to a PR system are not didates can stand for election, it opens the diminished in any way. The system is fair, sim- door for any orientation to make him/herself ple, and it serves the voter. available to represent a specific cause in the legislature. This article is an extract of the institute’s recent- • Should voter registration be compulsory and ly published report on a proposed new electoral what role can the Department of Home Af- system for SA. The report can be accessed at fairs play therein? https://drive.google.com/file/d/1EeTtWcxS4rONnXK The issue is flagged without making a - rec 2WufHTfArsaoDwkyR/view

UMRABULO NUMBER 51 | 2021 U We must also commend the work of the OR Tambo School of Leadership, “ which has used the opportunities provided by communications technology to maintain a programme of cadre development and political debate even during the pandemic.

Our great challenge now is to strengthen processes of induction and political education at branch level to ensure that we have members who are able to take up the task of driving social change.

President Cyril Matamela Rampahosa “(ANC NEC Meeting Political Overview, 07 December 2020) 23 FOR A LOOK BEYOND THE HEADLINES Read everything about the African National Congress, brought to you unmediated by the African National Congress.

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