Set for a shake-up: The Constitutional Court ruling means SA’s party-based electoral system will need a rethink. Picture: Getty Images/Waldo Swiegers
Set for a shake-up: The Constitutional Court ruling means SA’s party-based electoral system will need a rethink. Picture: Getty Images/Waldo Swiegers

On April 4 2017, as public sentiment against Jacob Zuma’s presidency was reaching a high point, 33 people came together to discuss obstacles to social cohesion in SA.

It was mere days after Zuma’s infamous midnight cabinet reshuffle, in which he axed various members of the executive, including finance minister Pravin Gordhan and his deputy Mcebisi Jonas. It was a move that would turn up the heat in the fight against state capture.

In that April meeting, dissatisfaction with politics and political leaders took form and would later result in the launch of the New Nation Movement (NNM), a civil society organisation resolved to bring South Africans together in two ways: through land and agricultural reform, and reform of the electoral system.

Last week the second of its objectives came into sharp focus, with the Constitutional Court ruling in its favour and finding that, in barring independent candidates from standing for election, SA’s Electoral Act is unconstitutional.

It is too soon to make a call on how dramatically this will affect the outcome of provincial and national elections. But the judgment is forcing SA into electoral reform, and parliament has been given 24 months to right the statute.

Bulelani Mkhohliswa, national co-ordinator for and founding member of the NNM, says all the people who attended the 2017 meeting had skills to contribute to SA’s politics, but none wanted to do so as a party politician.

The reality, Mkhohliswa says, is that there is no real political alternative to the ANC. So while there are people willing to serve, they are not willing to do so as part of an organisation they perceive as corrupt.

It was this absence of options — and amid growing frustration at what it perceived as unaccountable politicians filling up candidate lists at the behest of parties rather than people — that led the NNM to start pushing for the inclusion of independent candidates ahead of the 2019 national elections.

But Mkhohliswa emphasises that the judgment is only the beginning of this process; now it’s up to parliament to take the matter forward.

The clock is ticking. The ruling means the 2019 election is likely to be the last in SA held purely on the basis of proportional representation. With the next general election set for 2024, parliament needs to rewrite the legislation, leaving sufficient time for the Electoral Commission of SA (IEC) to overhaul a system that has been in place for more than two decades.

IEC deputy CEO Masego Sheburi tells the FM there are a number of issues that will have to be ironed out. Among these is the cost of participation. The 48 parties that contested the 2019 poll at national and all nine provincial levels each had to stump up R605,000.

The cost for individual candidates will have to be decided.

Another issue is the determination of constituencies, which will have to be done by the Municipal Demarcation Board, which currently decides on municipal ward boundaries.

The days of one ballot for national government and one for provincial legislatures are also likely to be over — and the ballot is sure to grow even longer than it was in 2019.

Sheburi says the IEC is ready to assist parliament with the process of reform, given the speed with which this will have to be done.

And it is critical that it is done right; getting the political system wrong could be detrimental to the plurality of voices in SA’s legislatures and in its political system.

Electoral reform in SA is not a new conversation. Back in 2003, an electoral task team led by Frederik Van Zyl Slabbert made detailed recommendations for a hybrid electoral system for SA. After all, the country’s interim and final constitutions merely prescribed a pure proportional representation system for SA’s first two democratic elections.

What was clear, and remains so, is that any new electoral system would need to meet the requirements set out in section 46 of the constitution. These include that the National Assembly should have 350-400 members; that it be based on a common voters’ roll; and that it results, in general, in proportional representation.

These requirements were taken into consideration by the electoral task team and, years later, by the high-level review panel chaired by former president Kgalema Motlanthe. Both argued for a hybrid system, similar to the one currently used at local government level.

But it’s also important to take SA’s electoral history into account.

Freedom Front Plus leader Pieter Groenewald wrote his doctoral thesis on SA’s national electoral system. He’s sceptical about a pure constituency-based system, raising the argument that it happened more than once in pre-1994 SA that a government ended up in power without having the support of the majority of voters.

Groenewald details how, in the 1948 national election, the Herenigde Nasionale Party and the Afrikaner Party together won a majority of parliamentary seats, even though the two parties combined lost the popular vote to Jan Smuts’s United Party.

The two parties officially joined forces to form the National Party, which institutionalised apartheid.

Groenewald writes that disproportionality in the system allowed the decisions of a minority to override the majority of voters in that election.

It would be a defining moment in SA’s brutal history of oppression.

Though the constitution today requires general proportional representation, Groenewald’s is a cautionary tale of what can happen under a pure constituency system, if the constitution were amended in that way.

In response to last week’s Constitutional Court judgment, Groenewald says there is a misconception that the electoral system must ensure members of parliament and provincial legislatures are held accountable.

This, he says, is not the actual case.

"It is the relevant political parties’ responsibility to ensure that their representatives are accountable to voters. Thus, it [would be] an independent candidate’s own responsibility to remain accountable. The electoral system cannot guarantee that," he says.

It’s a point that was also raised by the 2003 electoral task team, he adds.

"If the electoral system is indeed amended, it must be ensured that the final result is still based on proportionality," he says.

"If the said changes make provision for independent candidates, then it should function in the same way as the current system on local government level functions."

In the hybrid local government model, independent candidates can participate in elections, but proportionality is still guaranteed.

"If, however, there is a move to a constituency system, then it will surely play into the hands of the ANC," Groenewald says.

In the 2016 local government elections, the ANC and the DA won the vast majority of ward seats, with only a few independent candidates coming out on top.

Prof Ivor Sarakinsky from the Wits School of Governance believes one positive aspect about the judgment, besides forcing electoral reform, is that it opens up the political spectrum and starts to weaken the hold that parties have on the candidates who represent them in parliament.

Political lists have been a source of controversy in SA, as candidates with less than savoury records have made their way to parliament and appear accountable only to the parties that put them there.

The significance of the ruling lies not so much in the detail of allowing independent candidates to stand, says Sarakinsky. "It is the way the Constitutional Court has forced, indirectly, electoral reform in terms of bringing constituencies into national and provincial government processes. And that can only be positive in terms of accountability."

For Sarakinsky, this will "break the stranglehold of the party boss who controls the list and therefore can influence how people in legislatures behave".

Now, he says, "people will get mandates directly from voters in a particular area and can be held accountable to those voters ... that’s the positive thing that comes of this."

While SA is grappling with what this all means, the NNM’s Mkhohliswa believes fed-up South Africans already have an idea of who they would want to represent them. In the years that he’s crossed the country pushing for reform, three names have popped up repeatedly, he says: former public protector Thuli Madonsela; former ANC MP Makhosi Khoza, who was vocal in her criticism of her former party; and chief justice Mogoeng Mogoeng, a champion of ethical leadership as head of the judiciary.

"People are very clear about what they want," says Mkhohliswa. "All they are hoping for is a platform to express how they feel."