The Constitutional Court’s decision to declare unconstitutional aspects of the Electoral Act – which disallow individuals to stand as independent candidates for elections in provincial and national legislatures – will necessitate and lead to larger changes, whether directly or indirectly, to the country’s electoral system.
The groundbreaking judgement is likely to go beyond the remit of only allowing independent candidates to run for political office for provincial and national elections. It may compel Parliament to introduce wider electoral reforms to bring greater accountability which is so lacking in South Africa’s elective system.
South Africa’s governance system, the way the country is run, which includes the way people are elected to legislatures and appointed to the public service, is broken. Lack of accountability is one of the major causes of the broken governance system.
The bid to get independent candidates to stand for provincial and national elections was taken to the Constitutional Court by the New Nation Movement. The NNM challenged the Electoral Act 73 of 1998, saying it infringed on the right to exercise individual political choice. The NNM’s petitioning of the Constitutional Court shows again how valiantly civil society organisations take up the cudgels on behalf of citizens. It seems that the governing ANC and major opposition parties lacked the political will to do so.
At the moment the Electoral Act says a person stops being a member of the National Assembly once he or she loses their membership of their party. Both the ANC and the Democratic Alliance have opposed electoral reform that will loosen the power of leaders to appoint their own handpicked candidates to provincial and national legislatures.
The Constitutional Court ruled that the Electoral Act was unconstitutional by limiting an individual’s right to stand for elections to provincial and national legislatures as independent candidates.
Delivering the judgement last week, Judge Mbuyiselo Madlanga said Parliament has two years to amend the Electoral Act to allow for independent candidates to run for political office without having to be attached to a political party.
The weakness of South Africa’s electoral system is that elected representatives at provincial and national level are not directly accountability to citizens. South Africa’s national and provincial electoral system is a proportional representative system in which one votes for a party, which get seats in the legislature according to the percentages. Candidates are drawn from a list compiled by a party.
Party leaders handpick candidates and assign them to constituencies. Parties often foist their selected candidates on constituencies in which residents do not know them and candidates do not know residents. Often candidates are selected based on their loyalty to the party and leader, rather than on competence or talent.
Elected representatives cannot be recalled by voters even if they perform appallingly. They can only be recalled by the leadership of their parties. Parties can get away with appointing below-par candidates to legislatures as long they toe the party line.
In Parliament, parties whip their candidates into voting along the party line on decisions, policies and for the president, rather than based on their conscience. Independent candidates would be able to vote more freely, rather than like lemmings, for the party leader.
In SA’s current system, the candidates on the party lists, once elected, also elect the country president. Citizens do not directly vote for their choice of president. The main reason why the current electoral system was adopted in 1994 was to bring as many parties as possible into parliament. Over the years, some minority parties only secured seats because of the proportional representation system. The current system is also simple to implement.
However, although proportional representative system has boosted party representation and has given room for a large representation of small parties, it has not brought about accountability. Many of the small parties are not very relevant to the ordinary voter, neither are they very accountable or responsive. A more constituency-based system would exclude such parties – but would bring more accountability into the political system.
Furthermore, elections since 1994 have consistently produced racialised and class-based electoral national election results – rather than diversity.
SA urgently needs to make its electoral system more accountable and responsive to ordinary voters, rather than a plethora of small parties. The country also needs to minimize racialised voting electoral outcomes. A new electoral system must bring a direct link – accessibility – between voters and their representatives. It should also remain representative and must retain overall proportionality.
A second type of electoral system is called a constituency-based system, whereby an individual is elected by a specific area, whether town or village, to represent them.
A third option is a mixed electoral system which combines aspects of a proportional representative system with constituency-based system. The best electoral system for SA is a mixed one in which some candidates are elected through parties and others elected through constituencies.
This is an opportunity for Parliament to change the provincial and national system to such a mixed electoral system. Our local elections use the mixed system. Half the seats in local and metro councils come from the PR system and half from the constituency (ward) system.
Although local government has a mixed electoral system, party leaders still tightly control who is on the candidates’ list. For example in the 2016 local government elections, the ANC only released its mayoral candidates after the elections – with ordinary members, supporters and voters having had no say whatsoever in who “they were electing” as their city mayors.
This means that any new mixed electoral system at provincial and national level must compel party candidates for public positions to be made public before the election, compel parties to elect their candidates from constituencies and include a mechanism to have voters recall even candidates selected through party lists.
In a new electoral system, parties must be compelled to have racial, gender and youth inclusive candidate list. There is a last electoral change that the country desperately needs, in conjunction with a change to the electoral system. That is an extra box to tick on the ballot paper, to be ticked by voters who are unhappy with all parties listed on the ballot paper. This is important in a political system in which all political parties are irrelevant and voters feel they have no credible choices.
This article was originally published in the Daily Dispatch on Thursday, 18 June 2020