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.
After weeks in which politicians have been swarming across South Africa to canvass for votes – often making promises they know they cannot keep – the election is finally upon us. But what happens immediately after the election? What if no party receives an absolute majority nationally (rather unlikely) or in any of the provinces (more likely)? How do minority or coalition governments work and do they lead to better or worse government?`
On Wednesday about 60% of eligible voters will go to the polls to vote for the party of their choice or, if you are like me, to vote tactically for a party they do not like. Of course, about 40% of eligible voters will not vote at all, which means that the winning party at national level will receive only between 30% and 35% of the votes of all eligible voters – even if they win close to 60% of the votes cast.
By Saturday afternoon the Electoral Commission will announce the final election results and will indicate how many seats each party won in the National Assembly (NA) and in the 9 provincial legislatures. A party needs about 40 000 to 45 000 votes for every seat allocated to it in the NA, although the complicated formula used to calculate the seats provides a slight advantage to very small parties vying for only 1 seat. Such a party may get that 1 seat with as little as 30 000 to 35 000 votes.
If a party does not get the minimum of about 35 000 votes nationally, it does not get a seat in the NA and all the votes cast for that party are wasted votes. For this reason, I am not going to vote for a party that I believe will not get enough votes to be awarded at least 1 seat in the NA or in a provincial legislature.
At the first sitting of the NA after the election, the Chief Justice will preside while the NA elects a new speaker from among its members in accordance with section 52 and Schedule 3 of the South African Constitution. The newly elected speaker then presides over the election of a deputy speaker and the President from among the members of the NA. The election of the speaker, deputy speaker and president must be done via a secret ballot, and a candidate only wins if he or she obtains more than an absolute majority of the votes cast.
It is very likely that the African National Congress (ANC) will win an outright majority in the national election and will be allocated more than 200 of the 400 seats in the NA. (The ANC currently has 249 seats (down from 264 seats in the previous election.)
If the ANC wins more than 200 seats in the NA, the elections in the NA for speaker and President will be a formality as the ANC MPs will merely rubber stamp the candidates nominated by the ANC NEC. It is only where no party gains an overall majority in the NA (not likely) that the ANC would have to make a deal with smaller parties or with either the Economic Freedom Fighters (EFF) or the Democratic Alliance (DA) to secure support for its candidates for speaker and for president.
If Cyril Ramaphosa is elected President of the country, his next obligation would be to select and then appoint his cabinet shortly after his election. In terms of section 91(2) of the Constitution the President has absolute power to appoint the Deputy President and Ministers, to assign their powers and functions, and to dismiss them.
However, politically this power is constrained by the political necessity of retaining the support of the majority of members of the ANC NEC and of alliance partners, and to retain a working relationship with the ANC “top six” to prevent party insurrection and steps to sabotage his presidency. In the unlikely event that the ANC receives less than 50% of the national vote, the President will also have to consider the demands of those smaller parties whose support he would need to get elected and to govern.
It is for this reason it would not be surprising if Cyril Ramaphosa’s post-election cabinet includes at least a few individuals of dubious character involved in maladministration and/or corruption. As long as the Zuma/Magashule faction wields substantial power within the ANC, Ramaphosa will not be able completely to ignore this faction’s wishes and concerns without facing potentially serious consequences threatening his presidency.
Some commentators claim that a large election victory for the ANC will strengthen Ramaphosa’s hand vis-à-vis the Zuma/Magashule faction in the ANC and will give Ramaphosa more control over the appointment of the cabinet, and over government policy and decisions.
However, it is unclear why the Magashule/Zuma faction – who was prepared to risk electoral defeat for the ANC by supporting Nkosazana Dlamini-Zuma’s bid for ANC Presidency – would stop fighting Ramaphosa after the election just because he won a large electoral mandate. This is possible, but is it probable? It is probably more likely that the faction who controls the majority of branches and provincial ANC structures will be dominant in any ANC infighting.
The situation is even more complicated at provincial level. Although it is impossible to know for certain, there is at least a likelihood that the ANC will not obtain an overall majority in the Gauteng legislature, and that the DA will not obtain an overall majority in the Western Cape legislature. If this happens, both the DA and the ANC will try to make a deal with one or more political parties represented in the provincial legislature to try and form a government with its own party’s candidate as premier.
The first option for either party would be to form a minority government. This would entail the party securing the backingof the EFF and/or smaller parties for the election of its party’s candidate as speaker and as premier without forming a formal coalition with these parties. The first goal of both the ANC and the DA would be to convince a majority of the members of the provincial legislature to vote for their respective candidates for speaker and premier. The party whose candidate is elected premier can then form a minority government.
The successful party who get to form the government (either the ANC or the DA) might be required to make certain promises to the EFF or smaller parties to secure their vote. This could include the promise to implement specific policies or – more worrying from the perspective of corruption – the promise to appoint hand-picked individuals aligned to the smaller party to influential government posts. This is one way for smaller parties to secure access to the kind of patronage associated with the government tender system.
If the promises are not kept, the smaller party or parties who voted for the speaker or premier might then be persuaded to support a vote of no confidence against the speaker and the premier. A new speaker and premier will then have to be elected which would lead to the formation of a new government with different political parties.
In such an arrangement, every decision of the legislature – including the adoption of the budget or the passing of any other legislation – would require careful negotiation. When the minority government cannot secure enough support to pass the budget, say, it would make it impossible to govern. Such negotiations would provide further opportunities for the smaller parties to extract favours and benefits from the minority government.
This means that in such an arrangement minority parties who play their cards right could exert considerable influence over the government, without having any of the responsibilities of governing. Depending on the actors, this could either turn into a disaster or could be very good for the quality of governance.
As a minority government can only govern effectively if it is prepared to compromise and to negotiate with smaller parties, such smaller parties check the exercise of power by the minority government and can also moderate its more extreme impulses. This may lead to better government on the condition that the parties and individuals involved in the arrangement are not too corrupt, selfish or Machiavellian.
The second option is for either the DA or the ANC to negotiate with smaller parties to form a formal majority coalition. The parties could also negotiate with each other to form a grand coalition between them.
For a formal coalition to be formed, the parties would have to agree beforehand not only who is to be elected speaker and premier, but also on the positions in government each coalition partner would be entitled to. For example, if the ANC vote falls below 50% in Gauteng the ANC could negotiate a formal coalition agreement with the EFF. Such an agreement could determine that the EFF is entitled to appoint the MEC for Community Safety and the MEC for Human Settlements, while the ANC would be allowed to appoint the rest of the MEC’s.
Sometimes, the parties to a formal coalition agreement also negotiate beforehand to agree on certain key policies the coalition partners will support, or on deadlock-breaking mechanisms that will kick in when the coalition partners cannot agree on important issues such as the content of the budget. A formal coalition is usually more stable than a minority government. Such an arrangement gives the smaller parties direct influence over the government because – at provincial level – some of their MPL’s would become MEC’s (provincial cabinet ministers) in the provincial government.
As with a minority government, the coalition partners in a formal coalition government can always try to squeeze some concessions out of their larger partner by threatening to withdraw from the arrangement.
However, such threats are often less potent because it is generally assumed that the MEC’s from the small party would have a vested interest in remaining in the government because of the perks that come with a ministerial job. Similarly, other party leaders might be reluctant to leave the coalition as their party’s participation in government will also bring other perks and the ability to dispense (legal and perhaps even illegal) forms of patronage to party members and supporters, and to party funders.
In conclusion, even when a political party wins an outright majority of seats in a legislature, this does not mean the president or premier has absolute power to appoint members of the executive and to determine the course of the government – even though the Constitution provides for this. Where no party wins an outright majority some coalition arrangement could serve as an important check on the exercise of power, but if the junior partners are just as or more corrupt than the leading coalition party, it may lead to more, not less, coprruption.BACK TO TOP