29 November 2023

By Ebrahim Fakir

Public and expert reaction to the Constitutional Court’s judgement on allowing independent candidates to contest national and provincial elections – vacillates between breathless exuberance welcoming it as a reconfiguring political game-changer, or minimising the import of the court’s findings, remaining suspiciously apprehensive about its ability to change much.

Those who see it as a political game-changer premise their argument on the fact that any change in the system will of necessity include a constituency element. Having this constituency element will increase accountability, they argue. This is not strictly speaking, true. South Africa has an extensive constituency system at local government level, and accountability has not been significantly strengthened. If anything, accountability has been eroded. This is because the roots of unaccountability lie in the impunity with which elites and decision-makers behave, and the lack of consequences for misdemeanours. This is due to institutional failure, the remedies of which do not necessarily lie in the electoral system.

The second, slightly stronger argument proffered, is that responsiveness will improve as representatives depend on effective constituency representation for re-election. Again, evidence from the local level mitigates against this reasoning, even if it seems intuitively more plausible. Moreover, Zimbabwe has an almost pure constituency-based system yet neither accountability, nor responsiveness are in evidence.

The larger problem though, is that these arguments assume that this is what the consequence of the court ruling is. It is not. The Court has effectively left it up to Parliament to decide what the new system will look like. Multiple system options and alternatives may be available to Parliament, which means that a large constituency element may not even feature prominently in any new system, even though the court has more than hinted that the mixed system operational at the local level is the one they’ve been eyeing. Ultimately, though Parliament and the political parties that constitute Parliament, will be the ones that will (re)write the law by which Parliament will in the future be reconstituted. It is unlikely that they will want to legislate themselves out of existence. Most political parties will face an existential crisis if there is a very large move away from the proportional representation system. And in any event, notwithstanding the ruling of the court allowing individuals to contest for public office without affiliation to a party or organisation, the Constitution still requires that any system of election for the National Assembly and Provincial legislatures, including that which has a constituency element, must “result, in general, in proportional representation” s46(1)(d) and s105(1)(d).

Consequently, in any move to a slightly more constituency-based system, an overall Proportional Representation element will have to be maintained because of this constitutional dictum – unless this is changed in the process, meaning that in the current situation the PR seats will need be more than the constituency seats. Other than creating a two-tier system of representatives, one reinforcing party lines and others trying to be responsive to constituencies. The reality though is that even independent candidates often align to parties, or strike bargains with them. The second major issue militating against greater accountability and responsiveness will be that the size of constituencies will be too large to serve as effective conduits for responsiveness and community accountability.

Smaller and more manageable constituencies will, therefore, require more seats and will exponentially increase the current number of 400 public representatives. Also, any move away from PR poses existential threats to most political parties who are reliant on the aggregation of dispersed support for representation, rather than the geographic concentration of support to win a seat in constituencies. Again, the manner, and the size of constituencies and how they are drawn up in terms of spatial and settlement demographics will matter and may inadvertently reinforce the racial, income, and other cleavages in society in the face of entrenched apartheid spatial patterns remaining more or less intact. A large constituency component system, like the current Provincial set up outside Metro provinces, may replicate racial and ethnic identity politics.

Inclusivity and social stability are values that should not be underestimated in the design of any new electoral system. All have their advantages and disadvantages. Proportional Representation systems account for every single vote in determining the outcome of an election, but does not embed the potential for closer constituency responsiveness and accountability. They also give a lot of power to party bosses, but they are at least inclusive and representative of the widest cross-section of political opinion, in proportion to its support in society (or at least from amongst those who turn out to vote). Constituency systems, on the other hand, bear the potential for greater accountability and responsiveness to constituencies, reduce the power of party bosses and party strongmen. Their outcomes however, are not always a fair reflection of the choices made by an electorate and are thus not inclusive or always representative, since the loser, even by the smallest of margins in a constituency loses out completely and her/his voters’ votes count for nothing. In this system winners of an election by very slim margins take all the power. It can serve to distort the political views and values in society, rather than account for, and accommodate them.

The SA constitution at present does not create a coherence between competing values. At one time the constitution, privileges inclusivity, representativity and diversity, and at others accountability and responsiveness. We have just seen how systemically – electoral system design – foregrounds some values at the expense of others. It can privilege all equally, but that will result in a system of such deep complexity that it becomes almost impossible to effectively administer and manage, and creates problems in transparency and the delicate oversight mechanisms in the process. It also lends itself to gerrymandering, process manipulation, and procedural abuse. This opens up new spaces for conflicts and flashpoints, as has been the case in the DRC, Kenya, Malawi, and Lesotho where the tabulation of results can cast a pall of doubt on the credibility of electoral processes and consequently serve to delegitimise electoral outcomes.

Since all of this will be determined by political parties, the least trusted of all organisations and institutions in public life, Parliament ought to establish a task team, take extensive public submissions and conduct consultations in order to develop two electoral models which should be put to a referendum. After all – the political parties – in Parliament can’t be relied on to choose appropriately. Some of them will be voting for their own demise.

Whatever change is incepted, changes the incentive structure for political parties and individuals – and this changes the permutations of what can likely occur. But it should be borne in mind that contesting elections is a resource-intensive and expensive exercise. Individuals contesting elections will need to campaign; develop platforms; conduct outreach; develop policy and conduct communications. Despite the ability of new technology and social media to assist, these media have their limitations. Parties will therefore continue to remain an important feature of politics, rather than be obviated. Either way, fragmentation and proliferation in formal politics is likely to continue apace irrespective of what system configuration is settled upon. The administrative, systemic and operational burden on the election manager increases and flash points for dispute and conflict do so too.
Everything ultimately will depend on the nature, shape, and form of the electoral system chosen. And the size of the constituencies that will be drawn up, if at all. But if most things remain uncertain until then, the one certainty is that IF individuals have to be accommodated in the system, then apart from the electoral act having to change, the political party funding act of necessity has to be amended to require Individuals to also disclose funding and support they receive. At the moment the threshold amount is R 100 000 above which a donation has to be disclosed. This gap will need to be plugged since political parties WILL likely use (purported) independents to channel funds below the threshold to parties.

The judgement might have real potential for greater democratic responsiveness, representative accountability, and operational oversight – the hallmarks of effective democratic government, even though evidence from the local level where a mixed system is in use, doesn’t provide any evidence of greater accountability & responsiveness of constituency representatives. But all this will depend on the appetite for a complete and thorough-going reform of the system, including some serious constitutional amendments, rather than tweaking the edges to simply accommodate individuals.
For example, it is not beyond the realm of possibility to amend the proportionality principle, to retain its spirit but privilege responsiveness to a greater extent. As such provinces can be reduced or its legislative and executives powers be reduced. A second chamber can be done away with altogether, and the number of MP’s can be increased to 600 or 700. 300 or 350 to be elected off a PR list and the rest in constituencies. But the constituencies in this case will still be too large. and the constitutional dictum of overall proportionality will also not be met. Thus, for any meaningful balance between accountability, oversight, responsiveness and representativity, inclusivity, and diversity – bold and thorough-going reform that privileges the public interest over that of political party and personality ones will be necessary.

Ebrahim Fakir is the director of programmes at the Auwal Socio-Economic Research Institute (ASRI).

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