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.
This was all rather predictable. For a while it looked as if Parliament’s Defence Committee would stand its ground against the Minister of Defence, Lindiwe “Princess” Sisulu, who has steadfastly flouted the Constitution by refusing to produce certain documents to the Committee as she is required to do in terms of section 56(a) of the Constitution. It was something of a miracle that Nyami Booi and the other members of the committee had taken on the Minister in the first place. But yesterday they raised the white flag, indicating that they would not insist that the Minister respect our Parliament and adhere to the Constitution.
The move came a day after the African National Congress (ANC) gave its full support to Sisulu and cautioned committee chairperson Nyami Booi that his ultimatum to her to release the report within 30 days bordered on “ill-discipline”. In our system, when an MP has to choose between following the letter and spirit of the Constitution or the dictates of his or her party, the party will almost always win – unless the MP wishes to be redeployed as the town clerk of Putsonderwater or Lusikisiki or was planning to go into business and has lined up some lucrative government tenders.
There are many reasons why Booi and his committee were never destined to win this fight.
We have a closed list electoral system of pure proportional representation for members of the National Assembly. This means we vote for political parties and not for individuals. (Although we make our cross next to the smiling face – Botox optional – of a party leader, we are really not voting for him or her but for everything the party stands for – which should make it rather difficult for anyone with a a social conscience to decide which party to vote for.)
Parties compile lists of candidates and decide where on the list each person will feature – often through a quasi-democratic process that are tampered with after so called “democratic” input from members of that party. The higher up one is on a party list, the better chance one has of becoming an MP. Obviously, if one is at number 50 on the ANC list, one is guaranteed a seat in the National Assembly. If one is at number 50 on the Azapo list, one should not give up one’s day job.
This electoral system is said to be fair because every party is allocated more or less the same percentage of seats in the legislature than its percentage of the national vote. First-past-the-post systems, where one candidate wins an election and represents a constituency in Parliament and the losing parties get nothing, can lead to distortions and will favour bigger parties and eviscerate smaller one’s who might get up to 20% of the vote but no seats in Parliament.
While the system is fair, it is not working very well in South Africa at the moment – as the defeat of the Defence Committee clearly illustrates. In this system, the party leadership has enormous power over individual MP’s. If one falls out with the party leadership one can be “redeployed” or – in extreme cases if one refuses to be redeployed – can be expelled from the party, in which case one automatically loses one’s seat in the National Assembly. This power of party bosses is further enhanced by the apartheid era culture of strict party discipline, which our post-apartheid political parties have enthusiastically embraced (in line with political parties in other Westminster-inspired systems in post colonial Africa).
If one reads the ANC Polokwane resolutions on the “Political Management of Governance”, it is clear that the ANC believes that MP’s are accountable first and foremost to the party leadership and not to voters. But other parties also impose strict dicipline on MPs and once a decision has been taken by the party, all MPs have to toe the party line – unless the party has decided to allow its MPs a free vote, which happens very seldom.
Because the President is not democratically elected (but elected by the only democratically elected national representative body, the National Assembly) and because the President can be fired by the members of the National Assembly, our system appears to invest bigger powers in the legislature than the executive. But because parties and their leaders, rather than individual MP’s, are really in charge and because the President and his or her cabinet are also the leaders of the majority party in Parliament, the real power lies either with the President (as was the case under Thabo Mbeki) or with the governing party leadership (as seem to be the case under Jacob Zuma).
A junior MP must either be very brave or very stupid to defy senior leaders of his or her party by trying to hold them to account. I don’t know what came over Mr Booi. He should have known better and should have known that he was never going to win a political fight with Her Royal Highness.
At the moment we also have a one party dominant democracy with one party – the ANC – receiving almost two thirds of the votes. This means party leaders are less likely to worry too much about what particular voters or communities want. As a result we get decisions like the incorporation of Khutsong into the North West and Matatiele into the Eastern Cape.
It also means that there is even less incentive for the top 250 MP’s on the ANC electoral list to listen to demands from voters to hold the executive to account. Because they are more or less assured (or so they think!) of being returned to the National Assembly after the next election (if by then they had not secured any lucrative government tenders or found eager business partners to exploit their proximity to power), it is in their self-interest to obey party bosses and not to listen too much to what the voters want if this contradicts what party leaders demand.
Sometimes this is a good thing. Would our Parliament have passed the Termination of Pregnancy Act, the Civil Union Act and the Domestic Violence Act, if individual MP’s worried too much about what voters really think? Would they not all have clamoured for a re-introduction of the death penalty, the killing of all criminal suspects by the police – preferably in highly publicised shoot outs -and the torture of anyone caught watching pornography (although they recently seemed to have made moves to address that latter two issues).
It is often argued that we should change the electoral system to a mixed system in which half the MP’s are elected in constituencies in a first-past-the-post system and the other half proportionally to ensure that smaller parties are also fairly represented in the legislature. But we have such a system at local government level and it has not really made individual councillors more accountable to the electorate. Friends without qualifications are still appointed as financial managers, money stolen, roads remain untarred, houses unbuilt, potholes unfilled.
There are many reasons for this, including the electoral dominance of the ANC and the manner in which individuals are selected for “deployment” to city councils. We do not have a fully democratic system through which potential candidates have to take part in primaries where members of the party in that constituency can then decide who should stand in the general election against individual candidates of other parties. This means that people are in effect “deployed” to local government level and they are thus more likely to obey the dictates of the party (and act in ways that would advance their interest in the party – given the internal party politics) than actively serving the community by making some decisions that might anger party leaders.
One suggestion is to change the electoral system, but not to stop there. Why not also adopt legislation that would regulate the manner in which candidates for public office are selected by parties? A law that requires that free and open primaries should be held to allow party members freely to select their candidates for each constituency, so the argument goes, will go a long way to make individual councillors and MPs accountable to voters instead of to party bosses. If one has to have one eye on re-election in a party primary, one will take the community’s views far more seriously and will be more accountable to the community.
But there is a small problem with this argument. As the Republican Party in the USA is finding out, individuals who become members of a political party and actually make the effort to vote in primary elections are often more radical and extreme in their views than the ordinary voting public. For example, on Tuesday a far right wing candidate was elected by Republican voters in Delaware to stand as that party’s Senate candidate in the November election. But because she is so extreme in her views, she is probably not going to get elected in a relatively moderate state.
If one introduces primary elections in South Africa, chances are that the DA will field more pro-death penalty, shoot to kill and bring back the good old days candidates, while the ANC might field more mini-me Malemas. Potential MPs who have technical skills or are thoughtful and progressive are likely to be squeezed out by the lunatic fringe candidates preferred by energised and enthusiastic party activists.
Perhaps the present system is not that bad after all – at least on paper. Once the ANC fails to secure 50% of the vote and is required to govern in coalition with other parties (something far more likely in a proportional representation system than in a first-past-the-post system), Parliament will be in a far stronger position to hold the President and other cabinet members to account. Coalition governments weaken the power of party bosses and strenghten the hand of those legislators who wish to hold the executive to account.
But, of course, for that to happen a credible political party either to the left or the right of the ANC will have to emerge, one for whom large sections of African voters feel they can vote because they believe the party understands them and represents their interest.
Untill that day comes, we are stuck with a system that – on paper – is not bad at all, but in practice does not seem to serve the needs of most voters.BACK TO TOP