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
2 May 2023

Coalition chaos: Why we need to develop political conventions rooted in respect for voters to protect us from selfish politicians

After the resignation last week of Al Jamah-ah councillor Thapelo Amad as mayor of Johannesburg, the city is set to get its eight mayor in just over two years. (The DA’s Mpho Phalatse served twice: she was briefly removed from office, then reinstated by the court, then removed again.) While municipal governments in many smaller hung councils have been relatively stable, Johannesburg is by no means the only municipality where the election of a hung council (requiring the formation of a coalition or minority government) has led to instability and dysfunction.

As some opinion polls suggest that the ANC next year might lose its majority in the National Assembly (and in one or more provincial legislatures), the obvious worry is that this will lead to the same kind of instability and dysfunction in government that we have seen in places like Johannesburg.

If the ANC loses its overall majority in the National Assembly (and it remains an “if”), and if this leads to the formation of unstable and dysfunctional coalition or minority governments, it may lead to a further erosion of trust in government and its institutions, and – more broadly – in party politics in South Africa. I also fear that coalition chaos at the national level will fuel rising populism, and will further entrench the kind of scapegoat politics at which political parties across the political spectrum in South Africa seem to excel.

On paper, coalition governments are supposed to hold several benefits, most notably that they bring together a wider spectrum of people with a wide range of views, who are forced to compromise to find each other and to form a stable government. They are also supposed to curtail the abuse of power as well as corruption within government as it is thought that coalition parties will check on each other to ensure they are not tainted by shenanigans of their coalition partners.

This has obviously not been the case at local government level in South Africa, and it would be naïve to assume that coalition governments would function better at provincial and the national sphere.

Unfortunately, there are no easy solutions to the problem of unstable and dysfunctional coalition or minority governments. The problem can definitely not be solved merely by making a few well-chosen changes to the relevant parts of the Constitution and other legislation.

This is because the problem is at heart a political – and not a legal – one. If we had had more competent and honest elected politicians and more principled political parties, (and if leaders of larger political parties had the emotional intelligence and political skills to get more voters to reward such parties with their vote) much of what we see in coalition governments in Gauteng might have been avoided.

This is not to say that some minor changes to the Constitution or other relevant legislation should not be considered. As I have previously suggested, introducing an electoral threshold of 1% or 2% to limit the number of smaller parties might help to stabilise at least some of these coalition governments. Abolishing the secret ballot requirement for the election of speakers, mayors, premiers, and the president, and limiting secret ballots voting for the removal of these office bearers to cases where the vote is clearly aimed at holding the elected office bearer accountable, may also limit the ability of unscrupulous actors to “buy” the votes of elected officials of other political parties.

But such changes might not have a significant positive impact unless there is a major shift in our dysfunctional, money-and-status-driven, political culture in which political parties tend to choose their own short-term self-interest above the interest of voters, regardless of how this may impact on the most basic services the state ought to provide to citizens and without worrying too much about the long-term effect of their behaviour on the image and electoral prospects of their party.

When anything goes, anything goes.

Because of the transactional nature of our politics, gaining personal access to positions of power (and the relatively high salaries that go with such positions) often play a role in the decisions of party leaders about entering or exciting coalitions. Parties who enter into coalitions (or – like the EFF – support a particular minority coalition from the outside), often also benefit financially and politically from the access to public resources (tenders, jobs in the public service and on various boards of public institutions).

For as long as political parties believe they will get away with it, the squabbles for positions will continue to dominate coalition politics in South Africa. Put differently, until such time as it becomes politically untenable for political parties engaged in coalition negotiations to put their own short-term interests above those of the voters who elected them, the problem will continue.

What is needed is a fundamental change in the political culture.

As Prof Jaap de Visser pointed out last week at an excellent webinar on coalition governments, co-hosted by the University of the Western Cape Dullah Omar Institute, part of the problem is the absence of the type of political conventions that are rooted in respect for the outcome of democratic elections and thus respect for South African voters.

In many relatively well-functioning democracies with a long tradition of coalition governments, political conventions play an important role in preventing the kind of destructive behaviour by political parties that bedevil coalition politics in South Africa. Such conventions, which normally emerge because political parties wish to signal to voters that they respect the outcome of the democratic process, and thus the will of the voters, are absent in South Africa.

Political conventions impose informal (instead of purely legal) constraints on political parties in hung legislatures. Such conventions are broadly accepted by political parties in competitive democracies where governments are regularly voted into and out of office because politicians understand that these conventions will benefit them when their time comes to negotiate coalition agreements in the future.

One such convention is that the political party who receives the largest percentage of votes (or the largest number of seats) in the election will lead the coalition government, or will at least get a first stab at forming a coalition government.

For example, earlier this year in Finland, the National Coalition Party got the chance to form a coalition government after it came first in the national election, winning 20.82% of the votes. The Social Democratic Party of the then incumbent prime minister Sanna Marin came third with 19.95% of the votes, but made no claim to form a coalition government. Because the convention in Finland is that the winning party’s leader gets the opportunity to negotiate a coalition government after the president and the parliament convene to name the lead government negotiator, that was the end of Marin’s premiership.

Interestingly, the newly announced ANC guidelines on managing coalitions at the local level seems to embrace this principle. In terms of the guidelines, the ANC accepts the principle that the “party that has won the largest votes should lead the coalition in that municipality and executive positions should be allocated in proportion to the votes obtained by coalition partners”.

Another such convention is based on an agreement between parties that political parties who form part of a coalition government are only entitled to the number of position in the executive proportionate to the number of seats it holds in the legislature. Where this convention is upheld, a small party who obtained, say, 5% of the seats, would not be able to hold larger parties to ransom by demanding 50% of the executive positions in the coalition government.

The new ANC coalition guidelines commit the party to a weaker version of this principle, accepting that a threshold should be imposed to disqualify the smallest parties who had not won a minimum number of seats from serving in the executive.

On paper, the adoption of the guidelines by the ANC is an encouraging development. But one would be daft to take the ANC at its word on this, as its recent actions in various hung councils in Gauteng conflict with many of the principles contained in the guidelines. With the support of the EFF, the ANC installed mayors from tiny political parties to serve as figureheads for ANC-EFF coalition governments in several municipal councils, probably in the hope that voters will blame the inevitable failures of the coalition government on the hapless mayor from a Micky Mouse party.

The disastrous decision by the ANC, EFF and Patriotic Alliance to elect Thapelo Amad (whose party received less than 1% of the votes) as mayor of Johannesburg is the most obvious example of this. If the ANC follows the same strategy when Johannesburg gets to elect a new mayor in the coming days, it will cast serious doubt on the ANC’s commitment to its own guidelines.

What makes this even more depressing is that quite a number of seemingly thoughtful South Africans defended Amad’s election as the Mayor of Johannesburg, arguing that it was not illegal for him to do so (in the same way that it is not illegal to be a bigot or a bully?), or that it was the democratic right of larger political parties (by which they meant, the political party they support) to install the councillor of a 1% party to head the municipal government.

Hopefully, most voters do not share this view, and will punish the parties for imposing a candidate who received only 9000 votes as mayor of the city, and doing so in the name of “democracy”.

But I suspect that things will only really change when political parties accept that it is in their own interest to embrace the kind of political conventions discussed here, because the conventions are just as likely to benefit them than disadvantage them at some time in the future. This, in turn, may only happen when the electoral fortunes of political parties fluctuate over time and political parties are voted into and out of office at regular intervals.

2015 Constitutionally Speaking | website created by Idea in a Forest