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 weekend at the brilliant Open Book Festival in Cape Town, I attended a session where the panellists spoke about the need to change South Africa’s electoral system to ensure that our elected representatives become accountable to voters. While I agree that the current electoral system that operates at national and provincial level destroys individual accountability to voters, it is far from clear that a change in the electoral system will produce the level of accountability that many voters yearn for.
As the State Capture inquiry slowly takes its course, a low-level debate has been raging about the extent to which individual MPs of the governing party should be blamed for the actions of those party leaders who facilitated or actively took part in State Capture. After all, most governing party MPs either defended or remained silent about State Capture by the Guptas and other business interests. One could ask the same question (although the issues are, of course, very different) of the largest opposition party and its unwillingness to remove its former leader as Premier of the Western Cape, despite her incendiary behaviour on Twitter.
Although it would have been nice if more MPs and MPLs had spoken out about the wrongs committed by their party leaders to avoid the ethical quagmire of having to defend or acquiesce in the indefensible actions of their party leaders, our electoral system makes it very difficult for MPs and MPLs to do so.
This is because we vote for political parties, not for the individuals who represent them in the various legislatures. MPs and MPLs are only elected to the national and various provincial legislatures because their party decides to place them high enough on the party’s candidate’s list. While various parties have different ways of compiling their candidate’s lists, as far as I can tell the senior leaders of all parties have the final say on whose names go onto these lists and how high up each name is placed.
MPs and MPLs are therefore individually accountable to their parties, not to voters. Party MPs and MPLs who criticise the leaders of their party in public, run the risk of being dumped by their party when the party draws up the lists for the next election or even – in extreme cases – to be fired from the legislature and “redeployed” as ambassador to Venezuela.
South Africa’s electoral system scores high on fairness, inclusiveness, gender diversity, and simplicity – all prized attributes of a good electoral system. But many believe that it would be better to move to a constituency system in which we vote for a real living person, not for a party and its list.
But “first-past-the-post” single member constituencies in which the candidate who receives the most votes is elected to the legislature have severe drawbacks. In such a system all the votes cast for losing candidates in that constituency are wasted. A party who receives far less than 50% of the votes could amass a majority or even a two-thirds majority in the legislature. In the last UK general election, the Conservative Party won almost 49% of the seats in Parliament with just more than 42% of the votes, while the Labour Party won 2% less votes but 8% less seats than the Conservatives.
In countries with such a “first-past-the-post” system, there also tends to be far fewer women MPs. 42% of MPs in South Africa are women – far above the average for democracies around the world – and probably far more than there would have been if we had a “first-past-the-post” system.
In any case, such a single member “first-past-the post” system would conflict with sections 46(1) and 105(1) of the South African Constitution. These sections stipulate that the members of the National Assembly and provincial legislatures must be elected through a system that “in general” results in proportional representation. In other words, the percentage of seats allocated to a party should be more or less proportional to the percentage of votes that party received.
One suggested way of getting around this problem is to adopt the electoral system that currenntly applies to local government in South Africa. This provides for 50% of the councillors to be eected in wards in a “first-past-the-post” election, and the other 50% to be “topped-up” from party lists to ensure proportionality. (This is why some people got confused about the local government election result in Nelson Mandela Bay in 2016 where the ANC won 36 wards against the DA’s 23, but the DA was awarded 34 “top-up” seats from the party list and the ANC only 14 because the DA won more votes overall than the ANC did.)
However, this system has not, as a general rule, made councillors more accountable to voters. There are at least two reasons for this.
First, because the support of most political parties is concentrated in specific areas (an ANC candidate is not currently going to win a ward seat in the southern suburbs of Cape Town, and neither is a DA candidate going to win a ward in Khayelitsha), most ward councillors have little incentive to please voters. Instead, to keep their jobs, most ward councillors must please party bosses because those bosses have the final say on who the party will nominate in a specific ward.
Second, while party affiliations might change over time, most voters largely vote for political parties and not for individual candidates – even when they have the choice to select the candidate. If the DA nominates a traffic light as ward councillor for Sea Point, the traffic light will get elected. As the Van Zyl Slabbert Report of the Electoral Task Team noted back in 2003:
Candidates [in constituency or ward elections] are elected in their own right, but that is mainly as a result of their association with a political party. It should be remembered that one can reject an individual candidate only by voting for a candidate from another political party, and that may just be asking too much of many voters, regardless of where they find themselves on the political spectrum. In reality, the opportunity to reject an individual candidate in an election seldom materialises.
Second, as I alluded to above, even in a “first-past-the-post” constituency system, voters do not get to select the candidate of the party of their choice. A few party members or party leaders select the candidate and this candidate is presented to voters who must either vote for the candidate of their preferred party or vote for another party altogether. This selection of ward councillor candidates by party insiders or leaders can (and often are) manipulated. Once again, the Van Zyl Slabbert Report notes in this regard as follows:
Very often people associate issues of accountability with an electoral system, whereas no system can simply deliver accountability. Electoral systems of whatever variety can be abused by leaders, cliques, representatives and parties in an unimaginable number of ways. Redress for such behaviour cannot be sought in an electoral system.
The Van Zyl Slabbert Report recommends an electoral system with 69 multi-member constituencies with 4 to 7 candidates elected to the legislature from each constituency. This would be topped up by 100 list seats allocated to parties to ensure that the final number of seats for each party is proportional to the number of votes cast for each party. The list of candidates nominated by a party for each multi-member constituency as well as the proportional list would be closed, meaning the higher up you are on the party list, the more likely that you will win a seat.
For example, in this system if the ANC receives 60% of the vote in a multi member constituency who elects 5 people to represent the constituency in Parliament, the DA 20% and the EFF 20%, the first 3 candidates on the ANC multi-member constituency list of 5 will be elected to Parliament, as will the first candidate on both the DA and EFF constituency list. Smaller parties might not win any constituency seats, but they will be compensated by being awarded more proportional list seats.
Because the lists are closed, voters will still not be able to indicate which of the candidates they prefer unless they are prepared to vote for a party that they do not like or support. In terms of this system, party bosses will still be able to have the final say on who represents the party in the various legislatures as they can manipulate the various lists to ensure their preferred MPs or MPLs get elected.
If the electoral system proposed by the majority of members of the Van Zyl Slabbert Electoral Task Team Report is implemented, we will know which 4 to 7 MPs represent our geographical constituency in the National Assembly, but those MPs will probably still be more accountable to the party bosses than to voters in their constituency. There is another option. The Van Zyl Slabbert Report points to a system that might address the problem:
The only way to increase individual accountability significantly would be to create the possibility for a candidate to be rejected without concomitant rejection of a party. This could best be achieved by using open rather than closed party lists, with voters influencing the order of candidates. They would do this either by ranking candidates or by selecting a number of preferred candidates listed next to the emblems of their respective parties. Should the order of candidates, as decided by a party, be acceptable to a voter, however, then a mark need merely be made against the name of the party. Open lists would not only improve the accountability of individual candidates dramatically but would also substantially increase voter participation in the democratic process.
Such a system would allow voters to rank candidates from whichever party in order of preference. You might be an ANC voter, but an EFF MP standing in your multi-member constituency (represented by 5 MPs) might have been an excellent MP, and you might then choose to list 4 ANC candidates along with the one EFF candidate in your order of preference on your ballot paper. In such a system, MPs would be far more accountable to voters because they would be more likely to fear voters. (But I qualify this argument below.)
The Electoral Task Team did not propose open lists because of its perceived complexity which runs the risk of disenfranchising illiterate voters (although the proposal that you would be permitted to make a cross next to the party of your choice if you agreed with order of candidates of the party of your choice mitigate this problem to some extent).
In any event, even the best electoral system will not cure all the ills of our party-political system. This is because South Africa has a culture of strong party discipline, enhanced (or perhaps enforced) by party constitutions that allow the party to discipline its elected representatives if they do not toe the line.
Moreover, until recently national and provincial elections have also not been competitive – in every previous democratic election, we all knew the ANC would receive between 60% and 70% of the vote – and an absence of competitive elections also tend to water down the accountability of elected representatives – even in a “first-past-the-post” system.
Whether South African elections will become more competitive next year is anyone’s guess. But until elections become truly competitive, even the best electoral system will not ensure that elected representatives are truly accountable to voters.BACK TO TOP