As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Ordinary voters have little or no say in who will represent them in the national or the various provincial legislatures. It is often argued that this will change if we changed the electoral system. But changing the electoral system on its own will probably not make as big a difference as most people think. This is because party leaders and party elites will retain a decisive say in who serves in Parliament – unless the manner in which political parties nominate electoral candidates become far more democratic.
This past weekend the Democratic Alliance (DA) announced its lists of candidates for the national and provincial elections. At the announcement, party leader Helen Zille claimed that candidates emerged through “a gruelling, multi-layered assessment and selection process over the last six months”. She also asserted that the selection process was “rigorous and fair”.
She did not claim that candidates were selected in a democratic fashion or that all DA members were involved in the selection of candidates. This is not surprising because, like most other political parties in South Africa, the DA does not select electoral candidates in a democratic manner.
The DA’s complicated selection process seems to be aimed at preserving a decisive influence for party leaders and party elites (admittedly largely on a provincial basis) in the selection of candidates who they believe will serve the interests of the party or (if one is a bit more cynical) who will serve the interests of a particular faction or leader within the party.
An ambitious leader within the party will try and ensure that his or her trusted allies are the ones to decide on who the party’s electoral candidates in a province will be. There will be attempts to get rid of MPs who are perceived as enemies or who are from a different ideological camp. Politics, after all, is about who decides and who decides who decides.
There are good reasons why party leaders and the party elites may wish to retain a strong influence over the selection of their candidates who will serve in the National Assembly and in the various provincial legislatures.
Where party leaders retain a decisive say over party lists, they can ensure that the lists are race and gender representative – as the DA clearly tried to do when it compiled the lists announced on the weekend. In this manner they can help to control the image of the party and can prevent the party from being hi-jacked by extremists within the party.
But the more control party leaders exert over who gets selected (or re-selected) as party electoral candidates, the more power party leaders retain over their respective legislators and the easier it is to enforce party discipline over them and to ensure loyalty to an incumbent leader or leadership collective. An MP or MPL who wishes to retain his or her seat in the legislature will be wise to think twice before questioning party ideology and dogma or publicly criticising influential party leaders. Why alienate the very people who will have a decisive say over whether you will retain your job in five years’ time?
Such a system of selecting public representatives helps to retain public unity within the party and discourages public criticism of party leaders – although private “leaks” to newspapers can never be stopped.
In a system where a party’s electoral candidates are not democratically elected by branches or by registered members of the party, but by a carefully selected electoral college or selection panel, the MP or MPL will be wise to perform his or her duties in a manner that will please party leaders and party elites.
In a system in which the selection of candidates is controlled or heavily influenced by party leaders and party elites, there is therefore little or no accountability between elected representatives and voters. Instead the accountability is between elected representatives and party leaders. Instead of voters holding the power over elected representatives, party leaders hold that power over the representatives who are supposed to serve the interests of voters.
It is for this reason, for example, that it is unthinkable that the ANC members of the National Assembly would ever support a vote of no confidence in President Jacob Zuma in the absence of a formal decision by the National Executive Committee of the ANC requesting the president to step down. Any ANC MP who supported such a vote of no confidence would probably have a very short career as a member of the National Assembly.
In a party like the DA, where the leader of the party in the legislature is elected by the party caucus, those who aspire to be the leader of the party in the legislature also has a direct and vested interest in the selection of candidates who would support his or her bid for leadership. MPs would therefore be wise to back a winning horse in any leadership race and to refrain from criticising an elected leader for fear of being “unselected” as a candidate before the next election.
Of course, our current electoral system of pure proportional representation (which requires us at national and provincial level to vote for a party and not for individual candidates) strengthens the control of party leaders over elected representatives and further weakens the accountability of elected representatives to voters.
In theory a mixed system with multi-member constituencies and an additional list system to ensure proportional representation of all parties in Parliament (as proposed by the Van Zyl Slabbert Commission), will enhance the accountability of elected representatives to the voters and will weaken the power of party leaders over MPs and PMLs. Because individual candidates will compete in constituencies, so the argument goes, they will be more likely to listen to and assist voters – regardless of the wishes of party bosses – because voters will have a far bigger say on whether individual candidates are selected as MPs or MPLs.
But this assumes that there is some fluidity among voters about who they are prepared to vote for, that most constituencies will be at least somewhat competitive and that party leaders will therefore think twice before removing a party candidate who criticises the leadership of his or her own party or acts in a maverick fashion that defies party discipline.
It is far from clear that at present these preconditions exist in South Africa. I can’t see that any candidate other than candidates nominated by the ANC will, in the foreseeable future, have any chance of winning a seat in a multi-member constituency in Khayelitsha. Similarly, none but a DA candidate is in the foreseeable future going to win a seat in a multi-member constituency in the city bowl of Cape Town. And if voters in a particular constituency are overwhelmingly supporters of one party, party leaders will have no qualms in removing even a very popular MP because he or she does not toe the party line.
If this is correct, it would mean that elected representatives will not necessarily become more accountable to voters – even if we change the electoral system – unless the influence of party leaders in the selection of party candidates is somewhat curtailed.
After all, half the representatives in local government are elected in constituencies, but it does not appear to have strengthened the accountability between councillors to voters. Instead, councillors are only really accountable to party leaders. It is only when party leaders decide that councillors have gone too far in embarrassing the party that action is taken by party leaders to remove or discipline wayward councillors. This is so because in many Wards in the vast majority of municipalities (outside the Western Cape) it is a foregone conclusion that the candidate selected by the dominant party in that Ward will be elected.
The big competition then remains between aspirant candidates of the same party who know that they have to win the support of regional or national party leaders or the dominant faction within the party in order to get elected to a seat on a municipal council. Once the person has been selected as the dominant party’s candidate for Ward councillor by the party, there is little incentive for the councillor to engage with and account to voters.
This does not mean that I am in favour of the US system of primary elections in which several candidates of a political party compete for the right to represent that party in a general election in a particular constituency. Primary campaigns cost money and vested interests – big banks, mining interests, property developers – may fund a candidate’s primary campaign with a view to buying the loyalty of that candidate.
Instead a more low-key mechanism which allows all registered members of a political party in a particular constituency to select the candidates of the party to run in that multi-member constituency may be the best way forward.
The only problem is that party leaders (of both the ANC and the DA) will probably resist the imposition of more democratic internal party processes for the selection of electoral candidates as they know that this will enhance the power of voters and weaken their own power.BACK TO TOP