Why high hopes over Electoral Act judgment are misplaced
The president will not be directly elected and voters will still struggle to hold elected representatives accountable
The Constitutional Court ruled last week that the Electoral Act of 1998 is unconstitutional to the extent that it prevents individuals from contesting national and provincial elections. The court’s decision was met with excitement on social media and quickly led to speculation about which prominent South Africans might run for president in 2024. At last, it seemed voters would be able to hold elected representatives directly accountable to improve governance and service delivery. This excitement is misplaced.
The appeal case brought by the New Nation Movement and three other applicants was specifically about challenging the Electoral Act for infringing the right to freedom of association and the right to run for office contained in sections 18 and 19 of the constitution. As such the case concerned the electoral system: the rules that determine how elections are conducted and how results are calculated. It was not about SA’s system of democratic governance — whether we have a parliamentary or presidential democracy.
In a presidential system the president is directly elected; in a parliamentary system the head of government comes to power through the legislature. SA has a parliamentary system. The electorate votes for MPs to represent them in the National Assembly. We have a head of state and government whom we call the president. But presidents are elected by MPs at the first sitting of the National Assembly after an election has taken place. Only the National Assembly has the power to remove a president.
SA’s political system has not changed. We still have a parliamentary system with a president elected by the National Assembly (as set out in section 86 of the constitution). Voters will thus be unable to directly elect the president in the next national election.
The Electoral Act is likely to be amended to have a mixed system with elements of a constituency and a proportional representation system, similar to our local government system
The Constitutional Court ordered parliament to change the Electoral Act so individuals can now contest for election to the National Assembly. Theoretically, one of those individuals could then be elected president. However, because parties can still contest the elections, the party with the largest majority in the National Assembly is most likely to have its presidential candidate become president.
A variety of electoral systems can be used to elect leaders in a parliamentary system. The court has given parliament two years to devise a new electoral system for SA’s general elections, which will next take place in 2024. Keeping with sections 46(2) and 105(1)(a) of the constitution, which grant discretionary power to parliament to prescribe electoral systems, the court has not specified which system parliament must choose.
The main constraint for whatever system is chosen is that it “results, in general, in proportional representation” (section 46(d) of the constitution). Therefore, the Electoral Act is likely to be amended to have a mixed system with elements of a constituency and a proportional representation system, similar to our local government system.
There are a variety of systems for parliament to choose from. The electoral task team headed by Frederick Van Zyl Slabbert, which was appointed to draft new electoral legislation in 2002, considered 11 electoral systems in its deliberations. The task team emphasised four principles on which our electoral system is based: fairness, inclusivity, simplicity and accountability.
Many of the arguments made for reviewing SA’s electoral system revolve around the lack of accountability of elected representatives to those who elect them. The debate about electoral reform has become about balancing the values of inclusiveness and accountability.
During the Convention for a Democratic SA (Codesa) negotiations, proportional representation was chosen to allow for maximum inclusivity of the diversity of the SA population and to enable minority parties to be represented in parliament. This was considered important for minimising instability and conflict in the immediate aftermath of apartheid. By allowing individuals to take part in national and provincial elections, the Constitutional Court judgment reduces the inclusiveness of our electoral system.
The winner-takes-all nature of constituency elections is bad for smaller parties, which face the prospect of little or no representation in parliament if they are unable to win constituencies outright. Moreover, the inclusion of individuals undermines simplicity by increasing the number of ballot papers. But as we’ve seen at local government level, voters are fully capable of managing complex voting procedures.
As for achieving the goal of individual accountability, parliament may want to consider a recall provision to allow a constituency to recall its representative between elections. This will ensure political party and individual representatives are accountable to their constituencies.
A long, complex process is ahead of us. The next step is for parliament to put together an ad hoc multiparty committee to amend the Electoral Act. There will be an opportunity for public submissions and a process of public hearings before the committee deliberates on how to change the act.
Parties that are already in parliament can be expected to try to influence the process to increase their chance of being re-elected in 2024. Changes to the Electoral Act may have implications for other legislation, including the Political Party Funding Act and the Municipal Demarcation Act, which may prolong the process.
South Africans who see the Constitutional Court judgment as an opportunity for greater individual accountability in our politics may be disappointed. No electoral system can guarantee democratic accountability. Accountability doesn’t come from the voting system; it comes from the political culture.
We need to have a larger conversation about whether the internal politics of political parties promotes democracy and accountability.
We also need to interrogate the influence of money in our democracy, because individual candidates can and will be “captured” too.
There are no easy solutions for SA’s democratic puzzle. The Constitutional Court’s judgment gives us an opportunity to reinvigorate the debate on how to achieve a democratic state that ensures “accountability, responsiveness and openness” as envisaged by the constitution.
• Dr Mbete, an associate fellow of the Centre for Governance Innovation at the University of Pretoria, lectures international relations & SA politics in the department of political sciences.
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