At the core of our country’s myriad challenges is the lack of accountability for those in government. That much is obvious. We have settled for outsourcing accountability to the ballot box once every five years instead of breathing life into the many accountability mechanisms enshrined in our constitution.
Parliament sits at the apex of this accountability system, and this week we got to witness once again what a useless, tax-draining white elephant it has become.
President Cyril Ramaphosa is facing the most serious allegations to be levelled against him since he assumed the presidency. The $4m (about R62m) farm robbery saga has raised questions that deserve and require thorough investigation and public scrutiny.
Yet, instead of being hauled before parliament to account, he gets the privilege to account to an internal political party body, the ANC’s so-called integrity committee.
Section 55(2) of the constitution states: “The National Assembly must provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it; and to maintain oversight of the exercise of national executive authority, including the implementation of legislation; and any organ of state.”
A sitting head of state falls directly within this ambit. Instead of internal party processes, Ramaphosa should have immediately been called before parliament for a thorough and transparent interrogation that’s open to the media and the public
A sitting head of state falls directly within this ambit. Instead of internal party processes, Ramaphosa should have immediately been called before parliament for a thorough and transparent interrogation that’s open to the media and the public. He wasn’t and likely will never be.
It is within this context to consider that just a few hours ago, at midnight, the deadline by which parliament was ordered to pass a new electoral act expired. The Constitutional Court, in a milestone 2020 judgment, ruled that the current electoral act is unconstitutional, giving parliament two years to pass a new electoral law to govern the next election and elections to come.
The door opened for the significant reform of our democracy since 1994. A real shift in the democratic dispensation of SA whereby a new system allows the people of SA to directly choose the 400 people they deem worthy to go to parliament and serve the nation.
It comes as little surprise that parliament missed this deadline. In fact, it was likely the plan all along. For two years, parliament has employed Stalingrad tactics to dither, delay and defer — all in a bid to avoid the inevitable: a stronger, more accountable new electoral system that gives it back to people and communities and ensures the best, most deserving people represent us in parliament.
The Constitutional Court has now granted parliament a lifeline — a six-month extension to midnight’s deadline which is valid until December 10 this year. The battle has now gone into “extra time” and parliament must use this six-month grace period diligently and focus on the task at hand.
To date they have proposed a semblance of a draft bill which is flawed for too many reasons to consider in this article. In all the public consultations held by the minister’s advisory committee, not a single member of the public, academic expert or civil society organisation or any entity whatsoever had proposed the system that now features in the bill. This begs the question as to what drove the decisions to push this bill forward. The motives appear to protect party interests, not the public interest.
Suffice to say it will not stand up to constitutional muster and will be struck down if dared to be passed.
Frankly, it appears as if the political parties now in parliament have all tacitly agreed to kick the can down the road to avoid any new system that will threaten their own jobs, pensions and perks. The motives are clearly those of protecting party interests and undermining the public interest.
This approach is short-sighted. The path to a new electoral system started long before the Constitutional Court judgment of 2020 and parliament’s tactics cannot stop the inevitable change to our system.
The One SA Movement (OSA) has been fighting this battle in the courts, in parliamentary committees, in public hearings, in the media and in the public domain. Our stance is simple: we agree with the 2003 Frederik Van Zyl Slabbert report, the 2006 parliament report of MP Pregs Govender, the 2017 Kgalema Motlanthe High Level Commission, the Lekota Bill and most recently, the majority of the ministerial advisory committee to the home affairs minister chaired by Valli Moosa.
That is a constituency-based system where voters can directly vote for their representatives in parliament. We are joined by swathes of civil society organisations as well, including the Organisation Undoing Tax Abuse, the Council for the Advancement of the South African constitution, Democracy Works, the Independent Candidate Association, the Inclusive Society Institute, the FW de Klerk Foundation, Africa School of Governance, Raising Righteous Rulers, Citizens parliament, the Helen Suzman Foundation, Devoted Citizen and My Vote Counts.
Electoral reform in SA is 20 years overdue. The current strict PR, closed-list system was never intended to be in place long term
If parliament decides to pass its version of the electoral bill in its current form, we will be the first to approach the Constitutional Court to have the bill ruled unconstitutional.
So in the meantime, where to from here? Parliament was on Friday granted a six-month extension by the Constitutional Court, The Independent Electoral Commission , on the other hand, has made strong and clear pronouncements that it requires at least two years to implement a reformed electoral system.
Each delay is cumulative and risks either a delay to the 2024 elections, or worse, the elections being conducted under an unconstitutional electoral act. The risks cannot be overstated, especially considering the 2024 elections are expected to be the most competitive and tightly contested since 1994.
How do we guarantee parliament doesn’t continue with its dodgy delaying tactics if the Constitutional Court grants it a six-month extension? This is where my colleague and OSA national spokesperson Mudzuli Rakhivhane proposes an innovative solution to solve this and all future similar scenarios.
As she explains, the constitutional jurisprudence is unambiguous — the courts will not interfere in the legislative process prematurely, or at least until absolutely necessary. This finds its genesis in the principle of the separation of powers. Even when it’s factually clear that parliament is undermining its own process through delay there is nothing anyone can do until after the legislative process is complete. It’s like when your football team is 1-0 down in the 85th minute of the game and the opposition is doing all they can to run down the clock through cynical play.
A solution? An independent body, chaired by a retired judge, that will ensure parliament acts reasonably during the legislative process, adheres to court-mandated timetables, meaningfully facilitates public participation and ultimately ensures extension applications are reserved for situations of absolute necessity where parliament has acted in good faith.
Electoral reform in SA is 20 years overdue. The current strict PR, closed-list system was never intended to be in place long term. In his final speech to parliament in 1999, Nelson Mandela began the process by saying these words: “We do need to ask whether we need to re-examine our electoral system so as to improve the nature of our relationship as public representatives with the voters”. The time is ripe.
• Maimane is Chief Activist of the One SA Movement (OSA)
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