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.
South Africans will go to the polls on 27 October this year to elect new municipal councils. This will be done in terms of a mixed electoral system that allows for the direct election of 50% of ward councillors. Will the adoption of the local government system for national and provincial elections improve the legislative performance of elected representatives in the National Assembly (NA) and provincial legislatures? Sadly, I do not believe that the introduction of this system, or other proposed amendments to the electoral system, are likely to do so.
South Africa currently relies on a pure closed-list proportional representation system for the election of National Assembly MPs and members of provincial legislatures. Voters cast one ballot for the political party of their choice at national level, and another ballot at provincial level. Seats in the National Assembly and in provincial legislatures are then allocated to each party in proportion to the percentage of votes won by that party in the national and provincial elections respectively.
The allocated seats are filled from various candidate lists submitted to the Electoral Commission of South Africa by each party. In this system, voters have no say about which specific individuals are elected to the legislatures, as political parties decide which of their members will be placed on their lists and how high up they will be placed on those lists. The higher up on the party list, the more likely it is that the person will be elected to the legislature.
Obviously, a person placed at number 20 on an ANC National Assembly list will be guaranteed a place in Parliament (the ANC won 57% of the vote in 2018) while a person placed at number 20 on an ACDP national list is unlikely to get elected (as the ACDP won less than 1% of the vote in 2018).
This electoral system is often blamed for the failure of governing party MPs in the National Assembly to hold the executive accountable. Because we vote for political parties and not for individual candidates, elected MPs are in effect only accountable to their party and its leaders and not to voters. The only way to fix this, some critics claim, is to amend the electoral system to provide for the direct election of (at least the majority) of MPs to the National Assembly and provincial legislatures.
This will link individual MPs directly to the specific constituencies that elected them and will provide an incentive to such MPs to serve their constituents to win their trust and respect. This may sometimes require them to follow their own consciences instead of toeing the party line.
Because the Constitutional Court last year declared the current electoral system unconstitutional and ordered Parliament to amend the electoral system to allow independent candidates to stand for election in national and provincial elections, a new system accommodating the direct election of individuals to the National Assembly and provincial legislatures will have to be devised.
One option would be to adopt the electoral system now in place for the election of councillors to metro and local councils. In this system, voters in each ward in metro and local councils cast their first ballots for the candidate of their choice, and the candidate with the most votes will be elected to represent the people living in that ward. Ward elections allow candidates representing political parties and independent candidates to stand for election. Voters cast a second ballot for the political party of their choice in a proportional representation (PR) election.
Half the councillors are elected directly by voters in ward elections, with each ward being represented by one elected councillor, while the other half is designated from each party’s proportional representation list, to ensure that the final number of seats allocated to each party in a municipal council is proportionate to the percentage of votes cast for each party in both the ward elections and the PR election. (In other words, all the votes cast for ward candidates of a specific party are added to all the votes cast for that party’s PR list to determine the percentage of seats allocated to each party in a municipal council.)
For example, in 2016 in Nelson Mandela Bay, the ANC won 36 of the 60 ward seats, but was allocated only 14 additional proportional representation seats, thus winning 50 seats in the 120-seat council. The DA won only 23 ward seats but was allocated an additional 34 PR seats and thus won 57 seats overall. As the DA had won 46.71% of the total votes cast in both ballots and the ANC only 40.92%, more PR seats were allocated to the DA to ensure the number of seats of each party was roughly proportional to the percentage of the total votes cast for each party.
The Inclusive Society Institute recently tabled another proposal, centred on the creation of 66 multi-member constituencies (MCC), with between three and seven MPs directly elected to represent each of these constituencies in Parliament. There will be one ballot paper in each MMC, comprising only the names of the parties (not the parties’ individual candidates), followed by the names of the independent candidates. Moreover:
Parties are permitted to nominate a number of candidates equal to the quota size of each MMC plus one. Therefore, parties will be able to nominate four candidates to a three-seat MMC, or eight candidates to a seven-seat MMC. The additional candidate is to provide for filling any vacancies that may occur over time. The voter will cast a single vote for either the party or the independent candidate of his/her preference and seats will be allocated proportionally based on the number of votes received for each party or independent candidate… Party candidates are allocated in order of their appearance on the closed list for the party in the particular MMC.
Only 300 of the 400 members of the National Assembly will be directly elected in this way, providing for another 100 compensatory seats, which will be used to ensure overall proportional representation of all parties, based on the combined votes cast in all 66 constituencies for each of the parties. This is because sections 46 and 105 of the Constitution require that the electoral system for national and provincial elections must result, in general, in proportional representation of parties in legislatures. The proposal does not indicate how the vacant seats of independent candidates elected to represent MCCs will be filled.
The proposal of the Inclusive Society Institute will not satisfy critics of the current system, as it does not allow voters to vote for individual candidates to represent their constituency — except if they vote for independent candidates. Political parties decide on the candidates running for election on their ticket in each MCC and also determine the order of names of the candidates on the list. Although this proposed system would provide a direct link between the 300 directly elected MPs and the voters of a specific MCC, voters will still have no power to reward or punish a party MP for their good or bad performance.
The system is also likely to reward larger parties, who will be able to field a list of candidates in every one of the 66 multi-member constituencies, while it will punish smaller parties who may be unable to field a candidate list in all 66 MCCs. As smaller parties are unlikely to win any of the MCC seats, they must attempt to amass votes in all MCCs as these will be added up to determine their total percentage of the vote and thus their seats allocated from the PR list. The fewer MCCs they field candidates in, the more potential votes they will “lose”.
On paper, the system now in place for local government elections would be more palatable to critics of the current system as it would at least allow for the election of individual candidates (not parties), who will represent a single constituency. In theory, this system would reduce the control of party leaders over MPs and increase the ability of governing party MPs to resist party discipline and to hold the executive accountable, as candidates would have some incentive to please the voters in their constituency to try to secure their votes. A popular candidate running in an election in which her party faces a significant loss in support may do better than expected if voters decide to reward the candidate — despite their unhappiness with the party she represents — because the candidate is likeable and competent.
However, I am not convinced that the direct election of 200 or 300 National Assembly MPs, each representing a single-member constituency, will significantly improve the performance of individual MPs, will reduce their obsequious adherence to strict party discipline (even when this requires them to defend corruption), or will increase the willingness of governing party MPs to hold the executive accountable. There are several reasons for my pessimism.
MPs are more likely to be responsive to the needs of voters when their reputation is more important to voters than the voters’ feelings towards the party. The more strongly voters identify with a party and the more important they feel the party is in their lives, the less the identity of the candidate fielded by the party would matter to voters. I might be wrong, but I believe that the link between voters and parties (especially the ANC) is quite strong in South Africa, which is why so many disenchanted ANC voters did not vote for an opposition party in the last election, but rather chose to stay home.
Second, it is assumed that direct elections of MPs in single-member constituencies create competition and thus put pressure on incumbent MPs to be responsive to their constituents. But if an MP represents a constituency in which her party usually obtains 70% or 80% of the vote (which would be the case in many National Assembly constituencies), the incumbent MP will not fear being voted out of office at the next election. That MP knows that as long as she remains a member of the dominant party and ensures that the party renominates her as their candidate at the next election, she will be re-elected to Parliament. Such an MP will almost certainly toe the party line.
Following from this, as long as party leaders (either at regional or national level) retain final control over the selection of their election constituency candidates (with or without the participation of party members) there would be little incentive for a politician to cultivate a personal reputation with voters or take independent positions that would please voters, but would anger the party. This is especially true when constituency elections are not competitive and the “real” election the politician is running in, is the inter-party selection as the preferred candidate.
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