Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
3 April 2022

ANC faces storm of power struggles if forced to form a coalition government

What happens if the ANC loses its overall majority in the National Assembly in the 2024 or 2029 national election? If it forms a coalition government with smaller parties, will it force the ANC to govern better, or will it make things even worse? And what happens if the ANC retains control of the National Council of Provinces, but a coalition of other parties form a government that excluded the ANC? The short answer: it is likely to be messy.

With two years to go until South Africans go to the polls to vote in national and provincial elections, it is not clear whether the ANC will retain its overall majority in the National Assembly (NA) or dip below 50%. (The ANC won only 45% of the votes in last year’s local government elections – a drop of 8% compared to its performance in the 2016 local government elections – but the party tends to do better in national elections than in local government elections.) But voters who are rightly gatvol of government corruption, mismanagement, dysfunction, and paralysis, would be mistaken if they believed that things will necessarily get better if the ANC loses its majority in the NA.

Of course, as I explained last week, the proposed new electoral system may well result in the ANC winning a majority of seats in the NA despite having won less than 50% of the votes. But if the ANC failed to win a majority of seats in the NA, it would obviously try to form a coalition government with the assistance of smaller parties represented in the NA. The election of the President at the first sitting of the NA after the election will be pivotal, as the President heads the executive and appoints the cabinet. If no party wins a majority of seats in the NA, the election of a new President – which must be conducted by secret ballot – will be a high-stakes affair and it would be surprising if it did not result in chaos and disruption.

In terms of schedule 3 of the Constitution, a candidate must obtain “a majority of votes” in the NA to be elected President. If no candidate obtains a majority of votes in the first round, the candidate with the least votes is eliminated and further rounds of voting takes place until only 2 candidates remain and one of them wins a majority of votes. The system seems to be designed to deliver a result by “forcing” members of the NA to vote, each time with one less candidate in the running, until only two candidates remain and the candidate with a majority of the votes is elected President.

But if one assumes that the winner must obtain a majority of the votes cast, the election of a new President could be thwarted if enough MPs spoilt their ballots to make it impossible for a candidate to win a majority of the votes cast. Section 53(1)(c) of the Constitution states that all questions before the NA must be decided “by a majority of the votes cast”, except “where the Constitution provides otherwise”. I interpret this as also applying to the election of the President. But some or other party might well approach the Constitutional Court with an argument that the different wording in schedule 3 requires no more than that the person who wins more votes in the last round of voting than his or her opponent would be elected President.

If this happens, the Court will be drawn into an ugly political battle and will inevitably be accused of taking sides, and of in effect electing the new President. This will place enormous pressure on the authority and legitimacy of the court and would hopefully be avoided. But if it is not avoided, the election of the President could be delayed for a considerable time, thus keeping President Ramaphosa in office. This is because section 88(1) of the Constitution states that an incumbent President’s term of office only ends “when the person next elected President assumes office”. Although this is unlikely to occur, the governing party could attempt to stay in power after losing its majority in the NA, by continuing to spoil their votes in the election for a new President to thwart the election of a President who belongs to another political party. In such a situation a new election for the NA cannot be held in the first three years of its term, raising the spectre of complete government dysfunction.

If the ANC fell only a few seats short of an overall majority in the NA, it should not be too difficult for the party to secure the election of its candidate as President to head up a new government. Assuming the ANC won 194 of the 400 seats in the NA, it could make a deal with the EFF, DA, IFP, or Herman Mashaba’s ActionSA (if it won more than a handful of seats), or it could try to secure support from a few small parties with 1 or 2 seats in the NA in order to cobble together the required majority of 201 seats. (If the ANC manages to get one of its MPs elected Speaker, they would only need the support of 200 MPs, as the Speaker casts a deciding vote in the case of a tie.)

The easiest way to secure support is by offering small parties seats in the cabinet (the Good party already occupies a cabinet post), or by offering its leaders financial or other incentives to stay on board. (Whether such incentives would amount to bribery would depend on the facts of each case.) On paper, smaller partners in coalition governments could help to check the abuse of power and reduce corruption within government as they are outsiders less likely to turn a blind eye out of party loyalty, but if the coalition is cemented and held together by patronage it may well make things worse, rather than better.

A more interesting scenario would arise if the ANC fell 20 or 30 seats short of a majority. This would force the party to make a deal with either the DA or the EFF (or Herman Mashaba’s ActionSA if it won enough seats) on terms that would have to be politically and/or financially advantageous to either party. If it fails to make such a deal, this could lead to a stalemate, with the NA unable to elect a new President for the reasons explained above. Or it could result in the election of a President (from whatever party) heading an inherently unstable and ideologically incoherent coalition or minority government formed by a large number of parties currently in opposition.

In any such arrangement, coalition partners are likely to have an outsized influence on government decisions, as they would have an effective veto on important government decisions – including on major appointments, budgets and legislative initiatives. This would especially be so if they are willing, or believed to be willing, to collapse the government if they do not get their way. As the President and cabinet can be removed from office by a vote of no confidence, requiring a simple majority to pass, the government will collapse if coalition partners support such a motion.

A coalition government at the national level will potentially face a unique challenge not present at local government level. This is because the national Parliament consists of two houses, making it possible for a party or coalition of parties to controll the NA, while another party or coalition of parties control the National Council of Provinces (NCOP). The NCOP is made up of 9 delegations (one from each province), and on matters affecting provinces – including disaster management, education, environment, health, housing and welfare services – it votes on Bills in accordance with a mandate received from their respective provincial legislatures.

The NCOP can, in effect, torpedo any Bills substantially dealing with any of these matters, as the NA can only override the NCOP by again passing such a Bill which was rejected by the NCOP with a two thirds majority. (On issues not affecting the provinces, the NA can override the NCOP by passing the Bill rejected by the NCOP with a simple majority.)

One can imagine a situation arising at some point (but probably not in 2024), where a coalition of parties (excluding the ANC) commanded a majority in the NA and formed a government, but the ANC controlled 5 or 6 of the 9 provincial delegations to the NCOP. In such a case, the new coalition would struggle to pass any legislation on any issue affecting the provinces without the support of the ANC. In such a situation, the NCOP would play a far more prominent and politically important role than it currently does. It could lead to further instability and government paralysis, but because the NA can override an NCOP veto with a simple majority when it passes the budget, the impact would not be as severe as it could have been.

By pointing out that it will not magically improve governance at the national level if the ANC lost its majority in the NA, and that it may create new problems, I do not mean to suggest that it would be best for the ANC to retain its electoral dominance at the national level. I am also not suggesting that coalition governments are inherently a bad thing that should be avoided at all cost.

But it is important to understand what difficulties may arise when the ANC loses its absolute majority in the NA, and to begin to think of ways in which these problems could be avoided or minimised. But what is really needed is the emergence of one or more strong, principled, honest, and efficient political parties who enjoy popular legitimacy and have a strong commitment to the protection of both civil and political and social and economic rights.

One can only hope.

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