After the nine wasted years, President Cyril Ramaphosa’s government appears determined to spurn another opportunity to remedy structural defects in our system of governance.
Earlier this week the minister of home affairs, Aaron Motsoaledi, briefed the portfolio committee on home affairs on proposed amendments to the Electoral Act after the judgment of the Constitutional Court in the New Nation Movement case.
If there is one lesson we can take away from the Zondo commission, it must be that we need to shore up our accountability mechanisms.
The commission has been told how MPs closed their eyes and ears to abuses and maladministration in government departments and other organs of state, abdicating their responsibility to “scrutinise and oversee executive action” as section 42 of the constitution demands.
The current closed party list system places far too much power in the hands of party bosses, and leaves MPs with little incentive to buck the party line, as they run the risk of being stripped of their seats. The nexus between voter and elected representative is broken. Not that electoral reform is a magic bullet to cure all our democratic ills — it is necessary but not in itself sufficient. Calls for an overhaul of the electoral system echo a recommendation in 2017 by Kgalema Motlanthe’s high-level panel, which parliament has also ignored.
In the New Nation Movement case the Constitutional Court ruled that the Electoral Act is unconstitutional to the extent that it does not make provision for independent candidates to contest national and provincial elections due to the closed party-list system now in place. It is not the role of the courts to impose an electoral system, so the judges rightly did not offer any guidance in this regard.
They left that choice to parliament. The judgment offers a rare opportunity to conduct a wholesale review of the electoral system, and in doing so we must avoid short-term expediency (doing the least to satisfy the judgment), and rather look to establishing an electoral model that will sustain and strengthen our democracy for generations to come.
That judgment was delivered on June 9 last year and gave parliament 24 months to amend the relevant legislation. It has taken 18 months for this proposal to be placed before parliament — the bill has not been formally tabled as it has not yet (at the time of writing) been certified by the state law adviser.
Motsoaledi also placed before the portfolio committee the report of the ministerial advisory committee (MAC) on the electoral system. The committee, chaired by Valli Moosa, was established in March (nine months after the Constitutional Court judgment), and reported to the minister in June.
Its report contains majority and minority views. The minority view, strangely identified as “option 1", proposes a minimalist response to the Constitutional Court judgment. It may also be characterised as malicious compliance with the judgment. This option means the electoral system will be amended only to allow individuals to contest elections within the existing proportional representation (PR) system for national and provincial legislatures.
In other words, individuals could contest within a province for a provincial legislature, and on the province-to-national list for the 200 seats in the National Assembly. They will be excluded from contesting the 200 seats on the national-to-national list. This option is incorporated in the bill approved by the cabinet.
It was supported by MAC members Pansy Tlakula, Norman du Plessis (both formerly from the Electoral Commission of SA, the IEC) and ANC loyalist Mike Sutcliffe.
The casualty in all of this is the foundational constitutional principle of accountability. We, the people, are the ultimate victims, betrayed by those who are supposed to serve us
The majority view of the MAC, comprising Moosa, Daryl Glaser, Sithembile Mbete and Vincent Maleka, supported a mixed single-member constituency and PR system. The other member of the MAC was Nomsa Masuku, a current IEC commissioner, who did not express a preference. It is baffling why a member of an independent chapter 9 institution would be appointed to an executive advisory body — it was clear from the start that she would be conflicted.
This mixed system, which was proposed to the MAC by the Council for the Advancement of the South African Constitutions (Casac), would see the country divided into 200 single-member constituencies with a first-past-the-post outcome — the candidate with the most votes wins. This enables independent candidates to compete with candidates from political parties on a more equal footing as constituencies will be much smaller than the nine provincial constituencies envisaged in the minimalist option. It has the critical benefit of creating a closer nexus between voters and their MP. In this model the constitutional requirement that an election must result, in general, in PR is met by having 200 members of the National Assembly elected on a closed-party PR list system.
So what does this all mean? Effectively parliament will have four months to process the bill from when it reconvenes in February after the recess. This must include a meaningful public participation process which is mandated by the constitution. There can be few other pieces of legislation that demand a comprehensive public participation endeavour — this is supposed to be about the people, the voters, and much less about political parties and their vested interests.
In its public consultations the portfolio committee would do well to put both options in the MAC report on the table. The brief discussion by MPs that followed Motsoaledi’s briefing this week did not suggest that political parties would critically engage with both options, or even other ones. Turkeys don’t vote for Christmas!
If there is to be effective and meaningful public participation, parliament is unlikely to meet its June 2022 deadline to amend the electoral system. If this is how dilatory the government and parliament are towards implementing a judgment of the highest court, there is little cause to hope that the recommendations from the state capture commission will be treated any differently. The casualty in all of this is the foundational constitutional principle of accountability. We, the people, are the ultimate victims, betrayed by those who are supposed to serve us.
• Naidoo is the executive secretary of Casac
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