Electoral reform – constitutionality of the Electoral Act

December 1st, 2020

The separation of powers are meant to restrain the exercise of state power. This doctrine forms the bedrock of the constitutional state separating law-making from law enforcement from legal interpretation and adjudication. Nothing can truly restrain the government’s lust for power and control, but this is at least a mitigating factor.

The need for legislative reform is intrinsically linked to the need for electoral reform, and if either are to be recognised, the other ought to follow. In this article, I seek to present the deficiency in South Africa’s (SA’s) separation of powers model, briefly discuss the judgment in New Nation Movement NPC and Others v President of the Republic of South Africa and Others (Council for the Advancement of the South African Constitution and Another as Amici Curiae) 2020 (8) BCLR 950 (CC) and propose a solution that enhances democracy and accountability.

SA’s separation of powers model

In theory, SA subscribes to the separation of powers doctrine. It was the Constitutional Principle VI ahead of certification of the final text of the Constitution. It was argued at the time that the chosen system permitted too much overlap between the legislature and the executive, but this was dismissed in In re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253 (CC) at para 108 with the court stating that there is no separation that is truly absolute. Thus, the problem of a super executive with a legislature too severely compromised to fulfil its designed role came about. That designed role was never to be a rubber stamp.

The Constitutional Court (CC) has its critics spanning a variety of issues. However, the Certification of the Constitution judgment ought to be one of the most important. The court thought that a total separation of powers would lead to gridlock and render government unable to perform tasks, whereas a partial separation would not do this and have the bonus of the executive being more accountable to the legislature. This can be contrasted with what the United Kingdom House of Lords held in R (on the application of Jackson and Others) v Attorney General [2005] 4 All ER 1253, namely that the wills of each sphere of government assists in a balance between them all, and is maintained by a respect of each other. The South African legislature, however, has very little will of its own.

There are many examples of the total structural failure and evident inadequacy of the legislature’s role in the separation of powers doctrine in SA’s hybrid system of partial separation. The ‘Zuma years’ are instructional. The Nkandla debacle is the most obvious example in that the legislature totally failed to first inquire into executive accountability, and secondly to hold the executive accountable, after the judgment in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (Corruption Watch (RF) NPC as Amicus Curiae) 2016 (5) BCLR 618 (CC). This much was confirmed in Economic Freedom Fighters and Others (Democratic Alliance as Intervening Party) v Speaker of the National Assembly and Another 2018 (3) BCLR 259 (CC) at para 131. As much as there were parties in the National Assembly that tried to do these things, they were but a small part of the National Assembly and were drowned out by the African National Congress (ANC).

Until the use of a secret ballot in the 2017 motion of no confidence against President Zuma, members of the ANC had overwhelmingly rejected opposition attempts at impeachment and motions of no confidence. This was because the ANC’s Members of Parliament mandate emanated from the ANC’s headquarters at Luthuli House, rather than the electorate. The 2017 secret ballot attempt referred to above had 51 more votes supporting the motion than the 2016 attempt on an open ballot (see Lynsey Chutel and Khanya Mtshali ‘South Africa’s president Jacob Zuma has survived yet another vote of no-confidence – but only just’ (www.qz.com, accessed 4-11-2020)).  It showed that while some may have had a conscience, the others did not dare to openly go against their political superiors.

It is rare for ANC party members to go against the orders of Luthuli House, and this undermines the very purpose of the legislature. The reason for this is because members of the National Assembly and the National Council of Provinces (NCOP) are only indirectly accountable to voters and the burden of political instruction instead passes to the party in the belief it will enforce accountability. The ANC’s role in state capture is living proof that this belief was severely in error. All political parties are vulnerable in this respect, not just the ANC.

Luthuli House leadership and Cabinet sit side-by-side with ordinary parliamentarians. They caucus together and they decide what issues are and are not important enough. Further to this, Cabinet members have a vote in a motion of no confidence, which directly affects their job, and the ANC has on several occasions shown that it is unable to distinguish between the functions of party and state. These flaws apply in equal measure to the National Assembly and the NCOP as they rubber stamp each other to fulfil the wishes of the executive and Luthuli House. To this extent, the legislature and executive are of one mind.

The New Nation judgment

The solution to this has been given new urgency by the decision in New Nation. It must be immediately noted that the court explicitly stated it would not venture into what electoral system is better, correctly leaving it to Parliament to consider (para 15). Its role is to merely consider the constitutionality of what Parliament decides, of which the current system prescribed by the Electoral Act 73 of 1998 was deemed as unconstitutional.

A distinction is drawn between the right to join or form, and the right to not join or form a political party (para 17). The judgment then states that being forced to vote for a political party, divests that person of the choice provided by the Constitution in s 19(1) to not join or form such a party (para 18). Accordingly, the Electoral Act does not stand up against the right to freedom of association due to forced association with a political party should one wish to stand for public office.

After considering arguments that the Constitution specifically required a party based proportional representation system, the court rejected these arguments (paras 71 – 72), and conclusively stated that the party proportional representation system was only intended to exist for the first elections of the National Assembly and the Provincial Legislatures (para 102). Additionally, s 46(1)(d) of the Constitution requires the composition and election of members of the National Assembly to result generally in proportional representation.

The solution

I submit, in this regard, that even if the electoral system is amended (as it must now be), this does not negate the deficiencies of the South African separation of powers hybrid identified above. Rather, the New Nation case ought to be a catalyst for legislative reform so that SA can retain the benefits of proportional representation, while gaining the benefits of a constituency-based system as well.

The most obvious answer to making the legislature more responsive would be to adopt a constituency system in which voters directly elect their representatives. This would mean that both houses of Parliament would immediately mimic the situation in the United States Congress of two parties dominating all available seats. This sacrifices the plural character of a political system afforded by a proportional representation system. I, therefore, submit that the National Assembly should be elected through an exclusively proportional representation system. However, the NCOP should be the target of reform along the lines of a constituency basis to enhance the quality of law-making processes and accentuate the function of the legislature.

The NCOP unfortunately only has a limited benefit to SA by facilitating input of provinces on law making. When eight of the nine provinces are controlled by a single party, the issue of rubber stamping the governing party arises once more. Martin van Staden in ‘3 Electoral Reforms to Improve South Africa’s Democracy’ argues that the NCOP is essentially a federal institution in what is effectively a unitary state, and that it abdicates its duties to reflect the outcomes of the NA, making a mockery of democracy (https://rationalstandard.com, accessed 22-10-2020). I must agree with this. Democracy accordingly needs to be enhanced and the way to do this is through electoral and legislature reform of the NCOP.

Van Staden believes that the NCOP ought to be renamed and reconfigured as a Senate whose members are directly elected by voters on a first-past-the-post (FPTP) system. Of course, this means only the ANC and Democratic Alliance will probably be represented there (with an even greater ANC majority than now). It also means that voters become less beholden to political individuals they dislike, but nonetheless vote for the party that put such individuals there in the first place. I believe that a single transferable voting system ought to be considered against Van Staden’s proposal for an FPTP system.

The new Senate should accordingly as the most responsive component of the legislature be entrusted with confirming decisions of the National Assembly (unless overruled by a two-thirds majority) and exclusively confirming cabinet members, heads of institutions, and judges (on recommendation of the Judicial Service Commission), following intensive hearings. It should also consider impeachment and motions of no confidence. No senator should be a member of the executive (and this can be applied to members of the National Assembly as well). Whether the Senate would be composed of only directly elected members or a hybrid thereof can be up for debate as Van Staden notes some options. I submit that a suitable compromise would be of a strictly proportional representation in the National Assembly, and a strictly constituency-based Senate.

This of course presents a bigger issue than merely amending or rewriting the Electoral Act. To realise the solutions I write of here would require an admittedly radical constitutional amendment bill that completely reconfigures Chapters 4 and 5 of the Constitution. However, I (and others such as Van Staden) believe it vital to enhance SA’s democracy. Make no mistake, the New Nation decision is a step forward, but it ought to be a catalyst for a more thorough debate on the ideal composition of the electoral and legislative systems.

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Jonathan Wright BA (International Studies) (Stell) is an LLB student at Stellenbosch University.

This article was first published in De Rebus in 2020 (Dec) DR 37.

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