Electoral Reform: Constitutional constraints on the design of our electoral system
29 September 2020
This brief is part of a series considering the implications of the Constitutional Court’s order in New Nation Movement for electoral reform in South Africa. This brief will discuss the constitutional constraints imposed on Parliament as it undertakes the electoral reform process.
CONSTITUTIONAL CONSTRAINTS ON ELECTORAL REFORM
The Constitution provides that the electoral system regulating national and provincial elections must be prescribed by national legislation. It follows that the electoral system is “a matter that lies peculiarly with Parliament’s constitutional remit”. And that Parliament has the “constitutional authority and duty” to design the electoral system.This leaves the details of our electoral system to Parliament.
The “merits or demerits” of a particular electoral system constitute “a political question” of no concern to courts. It is for this reason that the Constitutional Court in New Nation Movement refused to comment on the arguments raised by parties concerning the desirability of a mixed electoral system. The Court said: “The pros and cons of this or the other system are best left to Parliament which . . . has the mandate to prescribe an electoral system.”
Although Parliament has a wide latitude with respect to the design of our electoral system, there are important constitutional constraints imposed on Parliament. The Constitutional Court has made it clear that Parliament’s chosen electoral system must be compliant with the Constitution. This is because the Constitution is our supreme law. Courts are enjoined to vindicate the supremacy of the Constitution by declaring any law inconsistent with the Constitution invalid to the extent of its inconsistency.
The Constitution imposes constraints on the Parliament as it undertakes the electoral reform process in a number of important respects. First, the Constitution provides some special requirements for our electoral system. Secondly, Parliament must comply with the principle of legality in amending the legislation prescribing the electoral system. And thirdly, the design of the electoral system must not unjustifiably infringe any constitutional rights or undermine any constitutional values.
SPECIAL CONSTITUTIONAL REQUIREMENTS
Sections 46(1) and 105(1) of the Constitution impose certain constitutional requirements for the electoral system regulating national and provincial elections. Most pertinently, the Constitution requires that members be elected to the National Assembly and the Provincial Legislatures in terms of an electoral system that “results, in general, in proportional representation.” This requires that the electoral system yields outcomes in which there is proportionality between the votes received by a political party and the number of seats that it receives in the legislature.
Our current electoral system is highly proportional – resulting in near perfect proportionality between votes and seats. It has been widely recognised as one of the most proportional electoral systems in the democratic world. However, this system was not constitutionally entrenched beyond the first election under the Constitution.The Constitution implicitly recognises that there are a variety of electoral systems that will yield proportional outcomes. It is not prescriptive as to which electoral system should be adopted.
In New Nation Movement, the Constitutional Court accepted that proportionality may come in different forms in holding that independent candidates are consistent with proportional representation. The Court pointed to the mixed electoral system for local government, combining proportional representation and ward representation, as one which results, in general, in proportional representation.
Although a variety of electoral systems may comply with the constitutional requirement of proportionality, an electoral system that leads to an unacceptable level of disparity between a party’s share of the vote and its seats in the legislature will be unconstitutional. However, the level of disparity that would fall outside of constitutional bounds has not yet been pronounced upon.
Nevertheless, our history points to the sort of perverse outcomes that the Constitution seeks to avoid. South Africa’s constituency-based single member plurality system, which was in place prior to democracy, regularly rewarded the National Party with a dramatically disproportionate number of seats in comparison with its share of electoral support. The inherently disproportional nature of the system was most clearly demonstrated by the 1948 election in which the Nationalist coalition came to power despite losing the popular vote. The continued disproportionality ratio between votes and seats in subsequent elections allowed the National Party to entrench its electoral dominance.
THE PRINCIPLE OF LEGALITY
The rule of law is a founding constitutional value. It encompasses the principle of legality, which bars arbitrary or capricious exercises of public power. The principle of legality has two elements. First, there must be a rational relationship between the means and the end sought to be achieved. Secondly, the end sought must be a legitimate government purpose. Legality is a threshold enquiry which precedes an enquiry into rights infringements  and which has been described as the lowest level of constitutional scrutiny.
In New National Party, the majority of the Constitutional Court held that Parliament is constrained by the principle of legality in determining the details of the electoral system. It held that there must be a rational relationship between the electoral scheme adopted by Parliament and the achievement of a legitimate government purpose. The absence of a legitimate government purpose or of a rational relationship between the scheme and that purpose will result in the scheme being unconstitutional.
In a dissenting judgment, O’Regan J contended that a stricter standard of scrutiny should apply to the legislative provisions prescribing the electoral scheme. O’Regan J argued that Parliament must act reasonably in the regulation of elections. This, she contended, is because—
“[t]he right to vote is foundational to a democratic system. Without it, there can be no democracy at all. What is more the right cannot be exercised in the absence of a legislative framework. That framework should seek to enhance democracy not limit it.”
The majority’s rejection of O’Regan J’s stricter level of scrutiny stemmed from separation of powers concerns. In the majority’s view, “[d]ecisions as to the reasonableness of statutory provisions are ordinarily matters within the exclusive competence of Parliament” and may only be enquired into by courts where a constitutional right has been infringed.
However, the majority’s approach has been widely criticised as being overly deferential to Parliament. While separation of powers harms are a matter of legitimate concern, O’Regan J’s stricter level of scrutiny would only apply to legislative measures taken to facilitate the exercise of political rights intertwined with the democratic process. Stricter scrutiny may be appropriate in these narrow cases to protect and enhance our democracy. O’Regan J’s approach may also offer a means of counteracting the pathologies arising from the electoral dominance of the ruling party and the concomitant lack of electoral accountability.
The electoral system must not unjustifiably limit any of the rights enshrined in the Bill of Rights.If a legislative provision prescribing an aspect of the design of the electoral system limits a constitutional right and the limitation cannot be justified, it must be declared inconsistent with the Constitution.
The first step in adjudicating a rights-based constitutional challenge is to determine whether a constitutional right has been limited. This can be complicated where the measure complained of is meant to facilitate the exercise of a right. Rights-based complaints about the design of the electoral system give rise to this complication. This is because the electoral system is meant to facilitate the exercise of a number of political rights enshrined in section 19 of the Constitution. These include the right to make political choices, the right to free, fair and regular elections, the right to vote and the right to run for and, if elected, hold office.
In New National Party, the Constitutional Court considered when a legislative measure designed to facilitate the exercise of the right to vote would, in fact, limit that right. The Court concluded that this would be the case if those who desire to exercise the right to vote are unable to do so even though they “act reasonably in pursuit of the right”.In Richter, the Constitutional Court explained that in determining what would constitute reasonable steps in pursuit of the right to vote, courts should bear in mind “both the fact that the process of voting inevitably imposes burdens upon a citizen as well as the important democratic value of fostering participation in elections”. The design of the electoral system must, therefore, facilitate the exercise of political rights without imposing unreasonable burdens on citizens.
The second step, which is reached only if a limitation of a right is established, is to determine whether the limitation is in terms of a law of general application and is reasonable and justifiable. The first hurdle of justification will often be easily passed where a limitation results from the design of the electoral system, since the legislation prescribing the electoral systems constitutes ‘law’.
The second hurdle, which requires that the limitation must be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”, will present more of a challenge. The limitation of a right calls for higher standard of scrutiny. A court must enquire whether the purpose sought to be achieved by the measure is proportional to the infringement of the constitutional right. If the relationship is disproportional or there are less restrictive means that could achieve the same purpose, the measure will not pass constitutional muster.
The Constitutional Court carefully scrutinises the justifications put forward for the limitation of political rights. In NICRO, Constitutional Court emphasised that where the State sought to disenfranchise a group of citizens for policy reasons, it had to provide sufficient information for the court to assess and evaluate the policy being pursued.
The founding values of our democracy are enshrined in section 1 of the Constitution. Although not an exhaustive list of constitutional values, the importance of these founding values is highlighted by the fact that they are super-entrenched.
Section 1(d) enshrines certain basic features of representative democracy as founding values. It provides that our democracy is founded on “[u]niversal adult suffrage, a national common voters role, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The enshrining of these features as founding values arises from our history in which the majority was disenfranchised and excluded from the political process.
While the values in section 1(d) are directly relevant to the design of our electoral system, there have been seemingly inconsistent Constitutional Court decisions concerning the stand-alone legal force of our founding values. In NICRO, the Constitution Court said that the values in section 1 “inform and give substance to all the provisions of the Constitution”. The Court further said that the values do not “give rise to discrete and enforceable rights in themselves”, but are given effect through the rights in the Bill of Rights. On this understanding, the role of the values in section 1 appears to be limited to that of an interpretive aid.
However, in UDM II, the Constitutional Court said that our founding values “set positive standards with which all law must comply in order to be valid”. It further said that laws that undermine the founding values will be invalid. On this understanding, the founding values have stand-alone legal effect. In enacting legislation, Parliament must realise the founding values to an adequate level – below which the legislation may be invalidated for inconsistency with the Constitution.
UDM II opens the door for a constitutional challenge to the design of the electoral system based directly on inconsistency with the founding values. However, it is important to note that there is no legal obligation on Parliament to optimise the founding values. Not every value can be optimised by the electoral system. It falls to Parliament to make important trade-offs between values.
While Parliament has a wide latitude in choosing the design of our electoral system, there are clear constitutional constraints imposed upon Parliament. The next brief in this series will consider the “core values” identified by the Electoral Task Team, which are guiding the electoral reform process currently underway. It will consider the suitability of these core values for this purpose in light of the constitutional constraints identified herein.
By Catherine Kruyer, Legal Researcher, HSF, 29 September 2020
New Nation Movement NPC v President of the Republic of South Africa  ZACC 11 (New Nation Movement).
Sections 46(1)(a) and 105(1)(a) of the Constitution. The Electoral Act 73 of 1998 is the legislation prescribing the electoral system for national and provincial elections.
AParty v The Minister for Home Affairs, Moloko v The Minister for Home Affairs  ZACC 4; 2009 (3) SA 649 (CC); 2009 (6) BCLR 611 (CC) at para 80.
Id at para 5.
United Democratic Movement v President of the Republic of South Africa  ZACC 21; 2003 (1) SA 495 (CC); 2002 (11) BCLR 1179 (CC) (UDM II) at para 47.
 Id at para 11.
New Nation Movement above n 1 at para 15.
 Id. The Court found support for this approach in UDM II above n 5 at para 11. UDM II dealt with the constitutionality of the legislative provisions permitting floor crossing. The Constitutional Court described the merits or demerits of the legislative provisions as being “a political question” of no concern to the Court. The Court reviewed the legislative provisions for consistency with the Constitution, but its approach has been widely criticised for being overly deferential to the Parliament.
UDM II id and New Nation Movement id at para 15 and 75.
Section 2 of the Constitution read with section 1(c).
Section 172(1)(a) of the Constitution. See Public Protector v South African Reserve Bank  ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA 253 (CC) at para 247.
Sections 46(1)(d) and 105(1)(d) of the Constitution.
Fick “Elections” in Woolman et al (eds) Constitutional Law of South Africa Service 6 (2014) at 10.
 Gouws and Mitchell “South Africa: One Party Dominance despite Perfect Proportionality” in Gallagher and Mitchell (eds) The Politics of Electoral Systems (2005; OUP, Oxford) at 361.
Items 6(3)(a) and 11(1)(a) of Schedule 6 to the Constitution.
Fick above n 13 at 17.
New Nation Movement above n 1 at paras 78-80.
 Gouws and Mitchell above n 14 at 355
The coalition consisted of the Reunited National Party and the Afrikaner Party. These parties later merged under the name of the National Party.
 Gouws and Mitchell above n 14.
Section 1(c) of the Constitution.
Affordable Medicines Trust v Minister of Health  ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (Affordable Medicines) at para 49.
Association of Mineworkers and Construction v Royal Bafokeng Platinum Limited  ZACC 1; 2020 (4) BCLR 373 (CC); 2020 (3) SA 1 (CC) at para 199.
Centre for Child Law v Media 24 Limited  ZACC 46; 2020 (3) BCLR 245 (CC); 2020 (1) SACR 469 (CC) at para 54.
New National Party v Government of the Republic of South Africa  ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 at para 19.
 Id at para 122.
Id at para 24. The majority’s approach is consistent with a long line of Constitutional Court jurisprudence. In Affordable Medicines Trust above n 23 at para 73, the Constitutional Court said that the rationality standard of review—
“respects the respective roles of the courts and the Legislature. In the exercise of its legislative powers, the Legislature has the widest possible latitude within the limits of the Constitution. In the exercise of their power to review legislation, courts should strive to preserve to the Legislature its rightful role in a democratic society.”
 See Fick above n 13 at 56.
Roux “Democracy” in Woolman et al (eds) Constitutional Law of South Africa Service 6 (2014) at 56.
Issacharoff contends for stricter scrutiny by courts to address the threats to democracy arising from the lack of electoral checks on the ruling party’s consolidation of power. See Issacharoff ‘The Democratic Risk to Democratic Transitions’ (2014) 5 Constitutional Court Review 1 at 23-4. Chowdry contends for the adoption of an “anti-domination doctrine” arising out of the principle of legality to check the harms resulting from the ruling party’s electoral dominance. The anti-domination doctrine would “render illegitimate any exercise of public power that has as its principal goal the preservation, enhancement or entrenchment of the dominant status of a dominant political party”. This compensates for the lack of political competition and the possibility of alternation, which should serve as the primary check on the abuse of power by the incumbent government. Chowdry argues that courts should take the pathologies associated with dominant party democracy into account. See Chowdry ‘He had a Mandate: The South African Constitutional Court and the African National Congress in a Dominant Party Democracy’ (2009) 2 Constitutional Court Review 1 at 33-4.
New National Party above n 26 at para 20.
 Id at para 20.
 Id at para 23.
Richter v The Minister for Home Affairs  ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC) at para 58.
Section 36 of the Constitution.
 However, if the limitation targets specific individuals, rather than applying generally, it will not pass constitutional muster. See President of the Republic of South Africa v Hugo  ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 at para 102.
New National Party above n 26 at para 24.
National Coalition for Gay and Lesbian Equality v Minister of Justice  ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 at para 35.
 Prisoners serving a sentence of imprisonment without the option of a fine.
Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders  ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (NICRO) at para 65.
 The constitutional prescribes a higher minimum amount of support for their amendment in comparison with other constitutional provisions. See section 74(1) of the Constitution.
See Ramakatsa v Magashule  ZACC 31; 2013 (2) BCLR 202 (CC) at para 64.
See Fowkes “Founding Provisions” in Woolman et al (eds) Constitutional Law of South Africa Service 6 (2014) at 11-24.
NICRO above n 44 at para 21.
Id at para 23.
Fowkes above n 47 at 25-6.
UDM II above n 5 at para 19.
Id at para 26.