Let's Think

Time to admit fault line in South African constitution

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South Africa’s democratic constitution, often described as the envy of the world, has a serious fault line, which now has the country in deep trouble.

The autocratic grab of President Jacob Zuma on political power, as illustrated by the present political and economic crisis, and the inability of formal structures to effectively counter-balance his power, at its core, is rooted in that fault line.

Because the supposed “representatives of the people” – members of parliament (MPs) – are sent to parliament purely based on party political lists, in practice they are primarily “representatives of the party.”

Their first concern will always be their relationship to the party they “represent.” As former ANC parliamentary colleague and ex-ambassador to Ireland, Melanie Verwoerd puts it in a BizNews article last week: “… for a vote of no confidence to pass at least 70 (ANC) MPs would have to be willing to give up their jobs.”

And, that ANC members of parliament are not allowed to exercise their conscience when voting on contentious matters in parliament, was left in no doubt by the party’s secretary general Gwede Mantashe.

At a media briefing after the ANC’s national executive meeting decided to “unite” behind President Zuma, he said about a motion of no confidence: “I don't know where this notion comes from that we are a collection of individuals who have conscience. We are members of ANC in a party-political system."

No member of parliament, from whatever party, is ever under immediate pressure from voters on their stance on any matter,  because voters don’t vote for them directly. How far removed, in this case the ANC MPs have become, is illustrated by the fact that they will – never mind their personal convictions/conscience – be forced to express their “confidence” in President Zuma despite the latest survey finding that 74% of all voters think Mr. Zuma should step down.

Structural problem

Under the present closed party-list system for a purely proportional election process, party loyalty will always trump the need for accountability.

And, that is what happens in South Africa. Initially, the South African electoral system, as designed in the interim constitution of 1994, delivering a near-perfect proportional representation – ensuring that the national and provincial legislatures were directly and widely representative, affording a strong sense of inclusiveness – an ideal environment for negotiating a final constitution.  

In those negotiations in the National Assembly, which doubled-up as a constituent assembly for adoption of a final constitution, those in favour of a so-called mixed elective system of proportional and geographical or constituency representatives lost the argument.

I do not know what happened in the caucus of the ANC, however, those of us calling for such a “mixed” system in the then National Party (NP) caucus was cut short by senior leaders who feared total domination by a black majority at constituency level.

In an article we carried after the 2014 election the story is related  of how since the 1999 general elections, a significant weakness has emerged with closed-party-list system apparently generating a deficit in accountability, particularly in the context of one-party dominance.

By that time the NP has, many believe pre-maturely, left the Government  of National Unity, leaving the ANC free reign in the run up to the first election post 1994 and beyond.

In 2002, the cabinet appointed an Electoral Task Team (ETT), chaired by the late Dr Frederik van Zyl Slabbert, to formulate a new electoral law for the 2004 elections and beyond.

It’s majority report proposed a ‘mixed system’ in which 300 of the seats allocated in the National Assembly would be allocated via 69 multi-member constituencies, and the remaining 100 would be assigned according to national closed lists, to retain the element of proportionality.

There were, however, time and funding constraints prohibiting implementation ahead of the 2004 elections. The proposed model was a compromise to ensure accountability.

Parliament voted to revisit the recommendations after the elections. Nevertheless, cabinet adopted the ETT’s minority position, which was to not introduce any changes to the electoral system.

This does not mean such reform can’t happen in the future, however, the political and practical possibilities for such changes before the 2019 election is probably very slim.

And, the ETT-recommendations have never since been reconsidered or adopted by Parliament, gathering dust on a shelf.

The result

The result of the lack of accountability in the electoral system has since allowed the ANC to develop strong autocratic tendencies, especially since the 2009 election.

It has seen the weakening of key state institutions by cadre deployment under a one-party dominant system and, effectively the dominance of party executives.

As seen in the in the latest developments surrounding the treasury and the many scandals at state enterprises, the interest of a small, politically well-connected elite now trump the public interest.

Opportunity might be ahead

While the time has clearly come to admit this fault line in our constitution, the chance to do something about it might not be too far off.

The take-away from a disappointing week for those that hoped that the ANC will find it within itself to stop the “Zupta” rot, taken with the results of the survey referred to above, is that the possibility of ANC dominance ending in 2019 is now better than ever.

As predicted since before the 2014 election, the chances that we will come away from the 2019 elections with a coalition government – something typical of a proportional election systems anyway – is improving all the time.

It is time for opposition parties to say “never again,” to commit to the idea of constitutional reform and an inclusive process and structures to build national consensus on the way there.

by Piet Coetzer

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