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.
On Friday Donald Trump will be sworn in as the 45th President of the United States of America – despite having “lost” the election by almost 3 million votes to rival Hillary Clinton. In South Africa the President is – currently, at least – in effect selected by a few hundred or at most a few thousand political party insiders. Is it time to change this system or will a new era of coalition politics address the democratic deficit in the current system?
As the recent US presidential election demonstrated, an electoral system with competitive party primaries and a long and gruelling general election that (on paper) may seem relatively open and democratic may nevertheless produce an appalling and unpopular result. (There is, after all, no vaccine for bigotry and hatred.) Recent polls indicate that a majority of Americans now disapprove of Donald Trump – even though a US President elect has historically enjoyed a honeymoon period in which he (it has always been a he) has enjoyed widespread support from the electorate.
This suggests that where vast amounts of money are spent by individuals and companies with a vested interests in “capturing” the state, the outcome of the election may well not reflect the democratic will of the people. Even a relatively open and transparent election process can be subverted by the rich and powerful – with ample assistance from a celebrity obsessed media trying to drive up their ratings by reporting every outrageous statement and act of a celebrity candidate in a so called “even-handed” manner.
On paper the election of the South African President is far less open to manipulation by the money men and women who wish to capture the state than is the case in the USA. Because it is party driven it is also, on paper, far less dependent on the accurate, fair and critical reporting on individual candidates by the electronic and print media.
This is because the South African President is elected by the 400 members of the National Assembly (NA) at the first sitting of the NA after its election. The first candidate who receives more than 200 votes from NA members becomes the President. The NA also has the power to “fire” the President and the cabinet by passing a vote of no confidence in the President. This it can do with a simple majority of 201.
For all practical purposes this means that where one political party has obtained more than 50% of the seats in the NA (as the ANC has done since 1994), the leader of that political party will be elected President of the country. This is what happened in 2009 and 2014 when the NA elected Jacob Zuma as President of the country.
Unless exceptional circumstances are present (for example, where the leader of the governing party has already served two consecutive terms as President of the country and cannot be re-elected), it is a foregone conclusion that the leader of the majority party in the NA will be elected President of the country.
On paper this means that at present ANC members who actively take part in their branches, are the only voters who have a direct say in the election of the President. (All voters have an indirect say in the election of a President through their support for the party of their choice in a national election.)
In 2015 the ANC had a membership of just over 750 000. Between 4000 and 5000 of these members are nominated or elected to attend the elective conference where the President of the party and the other national leaders are elected.
But this process is not without its problems. At the ANC’s 2015 national general council (NGC) President Jacob Zuma criticised attempts by some within the party to manipulate elections through “gate keeping” and “vote buying”. The same issues were highlighted in the January 8 statement read by President Jacob Zuma earlier this month. ANC Secretary General Gwede Mantashe has also at various stages highlighted these problems.
“Gate keeping” in the context of elections refers to the control exerted by regional party leaders over branches. (This control is often established and maintained through the distribution of various forms of patronage to those who directly control branches). Such control can allow regional power brokers to control who get selected to become branch chairpersons and ultimately who get selected to attend the ANC elective conference.
Vote buying can occur at an elective conference – although this can be minimised by enforcing the rule prohibiting delegates from having a cell phone present when they vote. When you do not have a phone with you, there is no way you can prove that you voted for one or other candidate, which means you can always take the money offered to you by the representatives of one faction and vote for whatever candidate you wish.
But as President Zuma also noted last year at the NGC, vote buying can also occur through the bulk buying of membership with ANC members being “used as voting fodder or to rubber stamp decisions of those who control the affected branches”. In such a case, you do not buy a vote at the elective conference, but instead buy the branch and the votes of that branch at the elective conference.
Less is known about the process for the election of the national leader of the Democratic Alliance (DA) and the party has not been forthcoming about any possible practical problems that arise with the election of its national leaders. I could find no admission of vote buying or gate keeping as far as the DA is concerned, but of course, this does not mean that these practices do not occur.
From what I can tell the DA’s system is aimed at ensuring a different form of gate keeping by the leaders and public representatives of the party. In terms of section 6.1.3 of its Constitution, the Federal Congress (where national leaders are elected) is largely comprised of existing office bearers of the party and of other elected public representatives. This means that a disproportionate number of people who elect leaders are party insiders.
Non-public representative delegates from branches are elected in terms of a system “approved by the Federal Council or Federal Executive” and must comprise at least 35% of delegates. This means that representatives of branches are not likely to form the majority of delegates attending the elective Federal Congress. The majority of people who will elect new leaders have been pre-selected because they are already DA leaders or public representatives.
In any case, in the unlikely event that the DA leader becomes the President of the country in 2019, the President would in practice again have been elected by a few thousand party members, but in this case most of them would not even be rank and file members of the party.
Does this mean that South Africa should ditch the current system and resort to a US style presidential election in which the President is directly elected by the voters? Although this option at first glance appears attractive, it is not clear that such a change will necessarily have any tangible effect and will make the system more democratically responsive. In a political system in which party political loyalties still play a decisive role, the leader of the most popular party (no matter who that may be) is more than likely to be elected President.
If the political parties retain their current method of electing party leaders, it is therefore unclear whether the direct election of the President will make a marked difference to who in fact select the President as the party will decide on the candidate and the voters will largely vote for the candidate who represents their preferred party.
But what happens if – either in 2019 or 2024 – no party obtains at least 50% of the seats in the NA? If that happens, a coalition would have to be formed at national government level – much like the coalitions formed in various Metro’s after the local government election last year.
During coalition talks, various parties will negotiate with one another to try and hammer out a coalition agreement. One of the most important issues to be decided would be who would serve as President and how many cabinet position each coalition party will be entitled to and which portfolios they will be permitted to control. If the leader of the largest party is particularly unpopular, smaller parties may even agree to form a coalition on the condition that the leader of the largest party does not become President.
Although this scenario would not directly enhance the democratic accountability of the President (as the President is still likely to be the leader of one of the larger parties selected by a few thousand party members at an elective conference), it may indirectly make the President and the entire cabinet more responsive to the needs of the electorate and hence more democratically accountable.
This is because the President and other cabinet members will suddenly not only be accountable to the leadership of their own party. They will also be accountable to coalition partners as the President and his or her fellow party cabinet members will need to retain the support and confidence of coalition partners to ensure that the coalition survives.
For example, where the President in a coalition government gets caught up in a corruption scandal, some coalition partners might worry that their party would be tainted by the scandal. They could then demand that the President be replaced by another leader serving in the government. If the dominant party in the coalition refuses to ditch its leader tainted by scandal, the other coalition parties could then support a motion of no confidence in the President and collapse the coalition government.
A new coalition government could then be formed or a new election could be held if a new coalition government cannot be agreed on.
There is no perfect system, either to elect party leaders or to elect the leader of the country. But coalition governments could be one way to mitigate against the negative effects of the chosen system.BACK TO TOP