Next year, in 2019, there will be a general election in South African for the national and provincial governments.
Before this very important and highly contested election, it is opportune to examine the electoral system that will be used to elect members of the National Assembly and Provincial Legislatures.
Section 46 of the Constitution deals with the nature of the electoral system that must be used for electing members of the National Assembly.
It requires that such an electoral system must, among other things, be:
(a) Prescribed by national legislation and, (b) Results, in general, in proportional representation.
Section 105 is the corresponding provision for the election of members of the nine provincial legislatures.
South Africa, in accordance with the existing Electoral Act, 202 of 193, employs a closed-list proportional representation system. In this system the different political parties each submit a list of individuals to be elected as members of the national and provincial legislatures.
Its advantage, besides the strict proportionality that it produces, lies in its simplicity, as voters only cast a single vote in relation to National Assembly (NA) and another for the relevant Provincial Legislature (PL) in the province in which they reside.
However it has a serious disadvantage. Voters do not have the power to determine who is on respective party lists. Instead they must vote for a political party of their choice, regardless of the dissatisfaction they may have of certain individuals on a list.
This means that those elected to the respective legislatures are accountable not to the voters but to the political parties to which they belong and which placed and ranked them on the lists.
This is most unsatisfactory from a democratic point of view. It means voters are unable (nor have the power) to determine the composition of a party list or the ranking on such lists. They vote for a party regardless of any serious reservations they may entertain concerning certain individuals on the list in question.
This means that the manner in which our extant electoral system works does not give full expression to the will and wishes of the South African electorate.
Furthermore, even if voters feel aggrieved by the conduct of a certain parliamentarian, they have no power to remove the person, who can remain as long as the party leadership decides.
It means such public representatives are not accountable to the voters but to their political party.
This flows from section 47(3) (b) of the Constitution which states that ‘[a] person loses membership of the National Assembly if that person… ceases to be a member of the party that nominated that person as a member.
This means that, should an MP or MLA incur the wrath of his or her party, they be deprived of membership of the party concerned and then automatically cease to be a public representative.
This is manifestly undemocratic and in conflict with the values set out in section 1 of the Constitution, which requires regular elections in a system of democratic government to ensure ‘accountability, responsiveness and openness’.
It is acknowledged, in general, that a Parliament, whose members are directly accountable to the electorate of their constituencies is more responsive than in a situation where members are accountable only to the leadership of their individual parties.
For this reason a commission of inquiry, chaired by late Frederick van Zyl Slabbert, was appointed to investigate and report on the electoral system.
Although this commission made majority and minority recommendations, they have never been acted on and, in effect, have been shelved and disregarded. The reason for this is that there is a manifest lack of political will, particularly from the ANC, to make the NA and PLs more accountable and responsive to the people through the kind of electoral system recommended by the Van Zyl Slabbert Commission.
It suggested a mixed system, premised on the tried and tested German model. The latter is known as the additional member system, which is a hybrid one that preserves the principles of proportionality in general, but introduces a significant measure of accountability to the electorate through constituencies that elect representatives directly.
There is an urgent need for such a change, since the lack of accountability and responsiveness in the working of the existing electoral system has, it is submitted, exacerbated the political climate for corruption and maladministration that escalated during the Zuma presidency. It is further submitted that in the debates and discourse taking place in relation to the 2019 election, that this issue is a pertinent one that the political parties must respond to.
Such a mixed system is not unprecedented, since in the local government sphere provision is made for both ward and proportional representation councillors.
Fifty percent of the councillors represent wards and the other fifty cent are elected by proportional representation in a way that, in the system as a whole, proportional representation prevails as set out in section 157(2) of the Constitution.
The question arises as to what can be done about the extant electoral system in relation to the election of public representatives in national and provincial government?
The present state of affairs is prejudicial from a democratic point of view and, it is submitted, in conflict with section 1(d) of the Constitution. Firstly, it is necessary to revisit the van Zyl Slabbert Commission’s report and to engage political parties, particularly the ANC, and to challenge it and the other political parties in the discussions and political debates in the wake of the 2019 election.
It is unlikely that the ANC will respond positively - because the present electoral system gives them power they use for narrow political reasons and not in the interest of the nation, nor in the interest of democratic accountability.
As a result of this prejudicial state of affairs, civil society and, in particular those NGOs - like Freedom Under the Law (FUL), the Centre for Constitutional Rights of the FW De Klerk Foundation, the Helen Suzman Foundation and the Council for the Advancement of the Constitution, which are concerned essentially with the Constitution and its democratic operation, need to seriously consider whether to challenge the Electoral Act of 1993. This is the act that mandates the existing closed–list proportional representation system because it is in conflict with both the letter and spirit of the Constitution, and in particular in conflict with section 1(d) of the Constitution which sets out accountability, responsiveness and openness as its fundamental values.
Changing the electoral system to institute a hybrid or mixed one would, provided that it complied with the requirement of resulting ‘in general, in proportional representation’, would not be required to be effected by an amendment to the Constitution, but merely by an amendment of the Electoral Act of 1993, referred above.
This is exactly what was recommended by the Van Zyl Slabbert Commission. In the interest of democratic accountability it needs to be put into effect.
South Africa has probably the most fascinating and interesting constitutional jurisprudence in the world. Our Constitution, although most certainly not perfect, is an exceptional one, which was bought by the blood of the martyrs. It is dynamic in nature and of necessity must change and develop to meet the challenges facing us as a nation. In this regard democratic accountability is an essential characteristic and will be meaningfully enhanced by the introduction of the hybrid electoral system recommended by the Van Zyl Slabbert Commission.