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ICYMI: The feasibility of direct election of the President in South Africa

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With the Zondo Commission report now having been concluded and handed to the president of the country, reflections on its recommendations and the feasibility of some of them have ensued. Among these recommendations is the call for the direct election of the president, which would mark a deviation from the current process whereby the president is not directly elected by the voters..

In a nutshell, direct election refers to a process whereby voters vote for their preferred candidate to become the president directly as opposed to voting for a political party which then produces a presidential candidate to be voted by Parliament after the election. This party system prevents voters from directly electing the president of their choice. Instead, they vote for a political party. The party compiles a party list and submits it to the Independent Electoral Commission (IEC) before an election.

Usually, the candidate who is ranked number one on that list becomes the presidential candidate. As such, the president who emerges from this process is answerable to the party, not the electorate. This results in some incumbents putting the interests of their political parties before those of the countries that they lead. South Africa is no exception in this regard. Party loyalty takes precedence over national loyalty. While this is wrong, it has become common practice and is not likely to change anytime soon.

Chief Justice Raymond Zondo Picture: Timothy Bernard African News Agency (ANA)

It is within this context, therefore, that Judge Zondo recommended that parliament should consider changing the manner in which the president is elected through the party system in order to improve the system. This recommendation was in response to the situation whereby South African presidents have wielded more executive power and tended to be more loyal to their political parties and not the people or the electorate.

But whether this recommendation will be feasible in the South African context remains debatable. I will proffer my suggestions in this regard and highlight what needs to happen in order to implement Judge Zondo’s recommendation. At the outset, I should state emphatically that this will not be an easy process for the reasons that I will enumerate.

Before I delve deep into the subject at hand, there are a few points that should be considered in this regard. The first one is to look at the global context on this matter. This is necessitated by the fact that South Africa is part of the global community and therefore has to consider how other countries conduct their elections. After this exercise, it is possible for South Africa to borrow what seems feasible and customise it for our local context.

Many countries that have adopted the parliamentary system globally use an indirect election of the president. Among them are: Bangladesh Estonia, Germany, Hungary, India, Israel, Italy, Latvia, Malta, etc. In some of these countries, the position of the president is ceremonial in the sense that the president does not have executive powers. This is not the case in South Africa where the president enjoys executive powers.

A country like America uses the Electoral College whereby each state has a specific number of College voters. Getting the majority vote in America does not translate into winning an election. The candidate has to win the College vote to emerge victorious. It was for this reason that Hillary Clinton won the majority of the general vote but lost to Donald Trump who garnered enough support from the Electoral College. This practice remains debatable.

Within Africa, countries like Kenya, Zimbabwe and many others use a two-round system. In the presidential election, if there is no outright winner in the first round, the second round only features the top two candidates, one of whom must get the majority of the votes to be declared the winner.

Conversely, South Africa follows the Proportional Representation (PR) electoral system.

Here, parliamentary seats are allocated based on how the party performed in an election. The party with the majority of the seats produces the president. This means that voters who like the party but not the presidential candidate end up elevating such a candidate even against their will.

The recommendation by Judge Zondo will be difficult to implement – at least in the short term. Firstly, any change in the electoral system would need the amendment of both the Electoral Act (No. 51 of 1998) and The Constitution of the Republic of South Africa (Act 108 of 1996).

As we speak, the Electoral Amendment Bill meant to allow independent candidates to contest elections outside of political party membership has not yet been passed into law. Although this Bill was supposed to have been passed by the 10 June 2022 deadline, this did not happen.

As a result, parliamentarians had to approach the Constitutional Court requesting that it grants Parliament an extension at least until December 2022.

Even this new deadline might not be met. My assertion is predicated on the fact that Parliament has been unable to amend Section 25 of the Constitution to enable the expropriation of land without compensation. This seemed to be a straightforward case in two ways. Firstly, no one is oblivious to the fact that black people were deprived of their land both in 1913 and in 1936. Secondly, the ANC and the EFF are not averse to the proposed land expropriation without compensation.

With enough numbers, this Bill should have sailed through without any glitches. However, egotism, political pride, vendetta and many such factors saw the EFF and other parties voting against the Bill. Of course, they presented their reasons for doing that. One of them was that in its current form, the Bill will not achieve the intended goal. Whether the argument has substance or not is immaterial. The bottom line is that the Bill did not pass the first step and thus could not go to the National Council of Provinces before being sent to the president for his consideration.

President Cyril Ramaphosa replies to Questions for Oral Reply in the National Council of Provinces (NCOP) in Parliament, Cape Town. Kopano Tlape (GCIS)

The proposal to elect the president directly is likely to receive more resentment. Truth be told, there are few politicians with credibility to the extent that they would be able to attract voters if they were to stand on their own. Astute and erudite leaders in Africa in general and in South Africa in particular are in short supply.

Contesting an election via a political party advantages even politicians who are less capable.

The majority of South African voters like their political parties and would want them to win each and every election. As such, they vote for the party even if the presidential candidate is of a questionable character. Politicians who are honest and sincere know that they owe their political success to their political parties, not their own credentials. Therefore, active politicians in Parliament would be the first ones to frustrate the process of embracing the

direct election of the president.

The second challenge is that the process cannot be changed overnight. Currently, Section 86 (1), (2) and (3) focus specifically on how the president is elected in South Africa. At its first sitting after an election, the National Assembly elects someone to be the president of the country. Voters or the electorate have no say in such a gathering. Their voices are represented by their elected representatives as is the case under representative democracy.

While this looks clear and straightforward, the challenge is that not all politicians are loyal to the electorate. Some of them go to parliament with a clear mandate from the electorate.

However, once they are there, they are swayed by fellow politicians in one way or another. With money exchanging hands regularly, the voice of the electorate is not amplified. Instead, some politicians dance to the tune of their benefactors.

As the saying goes, “he who pays the piper calls the tune.” Therefore, the president who emerges under these conditions is likely to be answerable to those who elevated him or her, not the people of South Africa.

Another challenge is that Constitutional amendments require a two thirds majority. As things stand, no political party (including the ANC) is likely to get that threshold. In the past, the

ANC had a two thirds majority but squandered the opportunity to make Constitutional amendments – including Section 25 of the Constitution referred to earlier. Right now, over 500 political parties exist in South Africa. As many as 325 of them contested the 2021 Local Government Election (LGE).

To make things worse, the number of independent candidates has increased exponentially as evidenced in the 2021 LGE. Once the Bill allowing independent candidates to contest national and provincial government elections is passed, things will get even tougher in terms of getting the required number of votes to amend the Constitution.

Therefore, the picture that has been painted thus far leads to the conclusion that while the recommendation by Judge Zondo makes sense in principle, the feasibility of its implementation does not look good. Individual politicians and political parties will frustrate the process for the reasons enumerated above.

*Mngomezulu is Professor of Political Science and Deputy Dean of Research at the University of the Western Cape.

*This article is original to The African. To publish, see terms and conditions