An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The fact that at the time of writing it remains conceivable that Donald Trump could win the US presidential election despite Joe Biden winning the popular vote, again raises questions about the fairness of the electoral system used to elect the US President. (In 2016 Hillary Clinton lost the election despite winning 1.9% more votes than Donald Trump.) Closer to home, one should ask whether South Africa’s lawmakers could learn any lessons from the US example, given that we are about to overhaul our own electoral system to give effect to a recent Constitutional Court judgment?
For a foreign observer, the electoral system used to elect the US President can look rather antiquated and potentially unfair. Instead of using a proportional electoral system in which the presidential candidate who wins the most votes (or who wins at least 50% of the votes) wins the election, the US uses a system in which the candidate who wins at least 270 electoral votes is elected President, regardless of whether that candidate won the majority of votes cast in the election. Electoral votes are allocated per state, nearly always on a winner-takes-all basis, which means the votes cast for the candidate who lost a particular state, do not “count” and are “wasted”.
On two occasions between 2000 and 2016 the winning candidate in the US presidential election lost the popular vote, and on three other occasions the candidate who won the election also won the popular vote. This suggests that in recent decades the winner-takes-all electoral college system has regularly produced a result that does not reflect the actual wishes of the electorate. Apart from the fact that it is obviously unfair, a system that allows a candidate who did not win the popular vote to win the presidential election, will potentially impact on the legitimacy of the election as well as the elected President.
Supporters of the electoral college argue that while the system may be unfair, it is needed to ensure that the voices of voters in smaller states are heard. Without it, so the argument goes, minority interests would not be catered for. Given the fact that modern US presidential elections focus almost exclusively on winning over voters in a few “battleground states” this argument is not convincing.
Supporters may also argue that similar electoral systems are used in many other democracies, and that these systems are not subjected to the same kinds of criticism than the electoral college system. For example, in the United Kingdom members of the House of Commons are elected in a constituency-based winner-takes-all system, which means the votes cast for the losing candidates in a particular constituency, are “wasted”. This can lead to unfair election outcomes. In 2015 the pro-Brexit UKIP won 12.6% of the votes but won only one seat, instead of the 82 they might have received with a more proportional system. This was because UKIP voters were spread across the UK, rather than concentrated in specific constituencies.
This is also not a convincing argument. There is a fundamental difference between the US presidential election, and the election for the House of Commons. The House of Commons consist of 650 members, each representing the voters of a geographical constituency. By far the strongest argument in favour of the system is that it thus potentially creates a strong bond between an elected MP and his or her constituents which strengthens accountability. According to this argument, an MP who is not responsive to the needs of her constituents runs the risk of being voted out of office.
Assuming that this is indeed true (more about this later), it would serve as an argument against the electoral college, as the President represents the entire country, not only the voters of those states where he (so far it has always been a man) won the electoral college vote. The electoral college may therefore have the opposite effect as it would encourage the President to respond only to the needs and concerns of the voters of those states where he has a chance to win the electoral college vote. President Trump’s claim earlier this year that Covid-19 was not a problem because mostly people in “blue states” died because of it, perfectly illustrates this point.
Supporters of the UK electoral system also correctly point out that a winner-takes-all constituency based electoral system tend to ensure stable government. This is because the system tends to manufacture a parliamentary majority for the winning party whose support for the prime minister and her cabinet ensures a strong and stable government. For example, in last year’s general election, Boris Johnson’s Conservative party won 43.6% of the votes, but more than 56% of the seats in the House of Commons, allowing it to form the government without the help of coalition partners, something that would have been impossible if a proportional electoral system had been used.
Because the US directly elects its president who forms the government regardless of whether he enjoys the support of the majority of members of the legislature, this argument does not apply to the US electoral college system.
Another argument in favour of the electoral college is that it ensures that the presidential election essentially remains a two party race between the Republican party candidate and the Democratic party candidate. This argument assumes that the two-party system benefits voters, but it is not clear that it does. Instead, it diminishes voter choice and tends to polarise voters. The fact that voters in the 2020 US election essentially had to choose between an ageing racist con-artist and an his ageing, decidedly underwhelming, opponent, suggests that this argument is also misplaced.
From the above, the reader may conclude that while the US electoral college system should be abolished, the winner-takes-all electoral system that applies to UK House of Commons elections could be an attractive option to consider when lawmakers overhaul the South African electoral system. But in my opinion, this would be mistaken.
South Africans are familiar with the pure proportional representation system which is currently used for national and provincial elections and may not be aware what dramatic effect a winner-takes all electoral system will have on the composition of the National Assembly. To illustrate this, let us look at some results from the 2016 local government election. In South Africa at local government level, half the members of a municipal council are elected in a winner-takes-all constituency system like the one used in the UK. This produces an unfair result which tends to favour the largest party or parties. To correct this, the final number of seats for each party is adjusted to achieve a proportional outcome for each party by allocating the other 50% of seats to political parties from a proportional representation list.
In 2016 the ANC won 84 of the 135 wards in Johannesburg (that is 62% of the seats). But after the other 135 seats were distributed to reflect the proportion of the vote actually received by each party, the ANC ended up with 121 of the 270 seats (that is 44.8% of the seats). The DA won 51 ward seats (about 38%) but after adjusting for proportionality it ended with 104 seats in the council (38.5%). The EFF did not win any ward seats, but after the adjustment ended with 30 seats (11%). This illustrates to what extent the largest party benefits from a winner-takes-all constituency system and how smaller parties tend to be wiped out. In Johannesburg, the EFF won more than 10% of the votes, but did not win any ward seats, so an exclusive constituency system would have disenfranchised the 10% of voters who cast their ballots for the EFF.
At national and provincial level the pure proportional representation system produces an almost perfect proportional (and therefore fair) result. But because MPs are elected to the legislature on party lists, they tend to be accountable to their party and not to voters. The current system is therefore quite unpopular among voters who argue that South Africans should be allowed to elect MPs in a winner-takes-all constituency system. A recent Constitutional Court judgment requiring Parliament to amend the electoral system to allow independent candidates to stand for election at national and provincial level, is widely seen as an opportunity to introduce such a system.
But because of the potential unfairness pointed out above and because proportionality is a constitutional requirement for an electoral system in South Africa, it will not be possible to introduce a carbon copy of the UK system in South Africa. One option is to extend the electoral system that applies at local government level to national and provincial elections. (Although smaller parties must be vigilant to ensure that the majority party does not water down the proportionality aspect of the electoral system as such a move would tend to favour the governing party and have devasting consequences for smaller parties.)
But it is not clear to what extent such a mixed electoral system will enhance accountability. This is because the winner-takes-all constituency system is said to work best where there is at least some possibility that the incumbent MP could lose his or her constituency seat. Where constituencies are uncompetitive (say a “DA” constituency in Sea Point or an “ANC” constituency in Khayelitsha), the real election happens when either the DA or the ANC decides who their candidate in that constituency will be, thus ensuring that MP accountability remains towards the party and not to the voters.
As the current US presidential election illustrates, choosing the wrong electoral system can potentially have a profoundly negative impact on the fairness of the political process. Moreover, where a political party enjoys a clear parliamentary majority, it may be tempted to adopt an electoral system that would favour it and disadvantage its opponents to the detriment of voters. It will therefore be important to keep a close eye on the process aimed at producing a new electoral system for South Africa.BACK TO TOP