The Constitutional Court judgment declaring the Electoral Act void and unconstitutional in that it bars independent candidates from participating in national and provincial elections gives SA an opportunity to once and for all deal with what - 26 years after the advent of democracy - remains unfinished business in our constitutional project.
We will need to expend the same time and resources on a new electoral system as we did when drafting the constitution if it is to not only endure but earn public acceptance and legitimacy.
The current electoral system was meant to have been used for the last time during the 1999 elections. The final constitution, adopted in 1996, required that a new electoral system be introduced for the conduct of national and provincial elections in 2004 and beyond. It was for that reason that an electoral task team (ETT) chaired by Frederik van Zyl Slabbert was appointed by then home affairs minister and Inkatha leader Mangosuthu Buthelezi.
There's sometimes a tendency, when a new electoral system is mooted, to want to dust off the Van Zyl Slabbert report and cut and paste it. We would be making a mistake if we were to put the report on a pedestal. It has it flaws, some of them obviously beyond its control. For starters, the ETT was a rush job. It didn't get enough time to deliberate on such an enormous task. It began work in May 2002 and was expected to submit a report to the minister by November of the same year, a mere six months for such a huge task. "The ETT had to do the best it could within the time available," it said in its final report.
The task team was comprised entirely of elites; no grassroots, civil society or union representatives, for instance. In fact there was an over-representation of government bureaucrats and Independent Electoral Commission types, whose sole purpose seemed to be to protect the status quo. The minority report that recommended the retention of the current electoral system, and which eventually won the cabinet's favour, was crawling with bureaucrats.
The task team also started from a wrong premise: that "there was a very high level of satisfaction with the current system", and some of its elements needed to be preserved or incorporated into whatever new formula was devised. A survey on behalf of the task team found upwards of 70% satisfaction with all aspects of the system. But that was a no-brainer. The country had just emerged from years under apartheid rule. Any system surely would have been viewed more favourably than the nightmare we'd just experienced.
The report also waxes lyrical about the fairness, inclusivity and simplicity of the current system. But it's less certain about the system's capacity to achieve accountability, probably the biggest flaw in our politics.
There's sometimes a tendency, when a new electoral system is mooted, to want to dust off the Van Zyl Slabbert report and cut and paste it
The ETT's recommendation of multi-member constituencies points in the right direction, but is by no means the real deal.
As it turned out, though, the report would be a casualty of the toxic political environment in the government at the time. Buthelezi became involved in a titanic battle with president Thabo Mbeki on a new immigration bill, to such an extent that Mbeki took the unprecedented step of taking Buthelezi to court. Buthelezi was also scrapping with his director-general, the mercurial Billy Masetlha, an ANC member, who had been imposed on him by Mbeki. Van Zyl Slabbert had fallen out with Mbeki, after a long friendship.
It is doubtful whether the task team would have been appointed in the first place had the home affairs minister been an ANC member. Van Zyl Slabbert said, as the cabinet was wrestling with his report, that the ANC was never interested in the inquiry: this was clear from the long delay in setting it up. He had received a call from an ANC official saying the party did not believe the system should be changed.
Some years ago I bumped into a cabinet minister on the plane and we got talking about the ills in the government. Why not change the electoral system to introduce more accountability, I inquired. "No, we can't do that!" he shot back, suddenly visibly agitated. Why not? "Because Tony Leon will take over. Our people need direction from the movement."
Years later I suggested a constituency-based system to another cabinet minister. She was appalled. "Our people will kill each other," she shrieked.
The ANC is clearly scared of democracy. Which is why it's a bit concerning that it is parliament that is now required to bring about changes to the electoral system. It will either drag its feet or come up with a fudge. Turkeys don't vote for Christmas.
What is required is not a cop-out that will cater only to the needs of politicians. Uproot the entire system - root and branch - and start on a clean slate. The matter should not be about serving the needs of candidates - independent or otherwise - or smaller parties. The focus should be on the voter. How do we empower him? How do we give him the instruments to hold those in power accountable? In a properly accountable system, anyone holding political office - from president to the lowliest official - should do so by virtue of direct election by the voter.
This time the project should not be rushed. The important thing is that we get it right. Let everybody in on the discussion. A commission of inquiry representing all strata of society and headed by a retired judge should provide an ideal platform to carefully deliberate on the matter. Its findings should then be put to a referendum.
Let us devise an electoral system for the ages - a system that befits our constitution.
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