Picture: EPA – A senior citizen casts her vote during the 2021 local government elections at a voting station in Alexandra township, Johannesburg. Despite a 2020 Constitutional Court judgment saying that independents must be accommodated in the national and provincial elections, there has been no consensus on which electoral system is best for the country, says the writer.
By Dr Michael Sutcliffe
In 2007, at its national conference, the ANC resolved that “appropriate requirements should be set for persons wishing to contest elections as independent candidates”.
However, it took a court case to begin the process of realising this situation, with the Constitutional Court handing down the New Nation Movement judgment in June 2020, arguing that independents must be accommodated in the national and provincial elections.
Importantly, in Section 15 of the Constitutional Court judgment, the court also stated that “a lot was said about which electoral system is better, which system better affords the electorate accountability”. That is territory the judgment will not venture into. The pros and cons of this or the other system are best left to Parliament which – in terms of sections 46(1)(a) and 105(1)(a) of the Constitution – has the mandate to prescribe an electoral system.
In February 2021, the ministerial advisory committee was then appointed by the minister of Home Affairs and it adopted the following principles to guide the assessment and choice of the electoral system: that any changes to the Electoral Act must promote (i) Inclusiveness (national unity); (ii) Fairness; (iii) Simplicity; (iv) Accountability; (v) Gender Equality; (vi) Proportionality; (vii) Effective participation of independents; (viii) Genuine choice; (ix) Effectiveness and (x) Legitimacy.
After public hearings and research into all available options which met these principles, the ministerial advisory committee members were not able to reach a consensus on a single option. In the substantive meeting finalising options the committee did succeed in narrowing down the options to a fairly stark choice with two options, each supported by three members of the committee:
Option 1: The slightly modified multi-member constituency which accommodates independents but requires relatively minimal changes to the Constitution. This option favours inserting independents into the existing electoral system, enabling independents to compete with political parties for votes.
Option 2: The single-member constituency option: This option favours introducing single-member constituencies, with proportionality secured via party lists. Here, independents would stand as individuals in constituencies and compete together with associates for the party-list vote.
A week or so after the meeting to finalise the options was held, one of the members of the ministerial advisory committee who had not participated in any of the substantive meetings of the committee, including the hearings, then sent through an email and said he supported option 2, with no reasons given. Importantly, though, the ministerial advisory committee provided a single report to the minister reflecting the committee’s advice.
In the discussions in the committee, it was agreed that the issue of accountability was largely a post-elections issue and not linked to any particular electoral system. At the same time, while both options satisfy the principles set by the committee, there certainly is significant evidence that option 1 is the better option to achieve a greater representation of women and is likely to provide a more inclusive system than option 2.
This is borne out by results from the past five local government elections, where we find that because of the impact of the apartheid spatial reality, the councillors elected at a ward level reflect largely the dominant “race” group of the area of the ward. In addition, well over 70% of the ward councillors are men and this is generally the case in electoral systems where there are wards/constituencies.
Also, it must be recognised that demarcating constituencies in our country would not only be highly politicised, very time consuming, potentially highly contentious and fraught with the potential of racial baiting, but incredibly costly. And those advocating for constituencies must also recognise that these constituencies will be very large – over 250 000 people in each constituency. In fact, these constituencies will be larger than 171 of our local municipalities. Those complaining that they don’t know their ward councillor must understand that if constituencies were to be brought into the system, they could not be done in time for the 2024 elections.
The minister considered the committee’s report and after favouring option 1, draft legislation was provided. While that draft was fairly complex, the portfolio committee has made significant changes after a very consultative process. The Bill then received significant support in the National Assembly, with 232 votes in favour and 98 against.
As the Bill’s memorandum indicates, the Bill is mostly aimed at inserting certain definitions that are deemed consequential to the expansion of the Act to include independent candidates as contesters to elections in the National Assembly and provincial legislatures. It seeks to provide for the nomination of independent candidates to contest elections in the National Assembly or provincial legislatures, and also provides for the requirements and qualifications that must be met by persons who wish to be registered as independent candidates.
As may be expected, there has been some opposition voiced, although that opposition appears to be making generic claims without any substantive evidence being provided. Some claims have been made, such as that the Bill favours the ANC and that the principle of the people governing has been ditched. Such claims are ridiculous as the Bill is about providing independents the right to stand and be elected, within the existing proportional system, widely acclaimed as being the fairest electoral system with the fewest wasted or excess votes.
There is a claim made that a “constituency system would improve the accountability of public representatives, who, over the past 28 years, have answered to their party bosses rather than the people who voted them into office”. However, political parties across the world stand for and get voted in by the electorate. And evidence shows that after five municipal elections in South Africa, fewer than 0.05% of councillors elected are independents.
It has also been argued that the Bill discriminates against independent candidates because it excludes independents from the proportional representation list. Again, this is a rather strange claim, because the whole reason for having independents is that they are not political parties having PR lists of persons who could be elected. Rather, they simply want their right to stand as individuals.
As anyone who studies the municipal electoral system in South Africa well knows, independents contesting municipal elections have often created associations/parties such as the following to contest for the PR components of such elections – and this would, in all likelihood, happen once independents are allowed to participate in the electoral process for national and provincial legislatures:
◉ Independent Alliance
◉ Independent Candidate
◉ Independent Citizens Movement
◉ Independent Civic Organisation Of South Africa
◉ Independent Ratepayers Association Of SA
◉ Independent South African National Civic Organisation
◉ Independents For Communities
Others have claimed that independent candidates are required to get at least 8 000 signatures in support of their candidature, while political parties do not need to show such support in their registration. This is not true in that the portfolio committee argued that such conditions should apply to independents and parties, and the IEC indicated that this would be done through separate legislation as this Bill dealt only with bringing independents into the electoral system.
Overall, the opposition appears to be from elites using the media to make generic claims without providing empirical evidence showing how their system would work.
What is important, though, is that there should be no delays in finalising the legislation and ensuring that independents have the right to participate in the 2024 elections.
Sutcliffe is a former municipal manager of eThekwini Metropolitan Municipality. He co-founded City Insight Pty Ltd with Bannister.