Electoral reform: Do independent candidates strengthen the institution of parliament?
2 October 2020
Democracy is realized in its institutions: a legitimate (freely and fairly) elected Executive, an independent judiciary, and a representative parliament. In focusing on parliament, and particularly when contemplating its reform, we should be look both at present conditions as well as existing incentives (or disincentives, as the case may be) for parliamentary representatives to perform optimally.
Parliament is more easily imagined as a building in Cape Town shrouded in mystery, madness, and mayhem instead of what it should be: an accessible public institution. If the duty of the executive is good governance, and the duty of the judiciary is the rule of law, where does parliament feature in its responsibility to the people? When it defaults on this responsibility, how can the people hold it accountable?
The awkward middle child, parliament is pushed and pulled between its two siblings: hamstrung in debate by party politics or chided in court after bad law-making. Executive accountability seems particularly limited – the party list system and weak competition at national elections ripen the conditions for parliament to operate as a rubber stamp for executive decisions. Beyond party politics, parliament is hindered by weaknesses of institutional process and internal policy.
Determining whether or not independent candidates will strengthen the performance of parliament to its own mandate requires a first look at some of the internal constraints to the proper functioning of the institution.
DO POLITICAL PARTIES KILL FREE WILL?
In extolling the lessons of UDM II, often referred to as the “secret ballot” case, the majority bench in New Nation Movement correlate party politics with hindered individual free will. The charge is simple – representatives experience a degree of duress to vote according to party lines in parliament; if they fail to do this, they risk party sanctions, which restricts both the free will of representatives to vote according to their conscience. Justice Jafta’s minority judgment goes further in making another significant claim, that when the choice of representative is made by political parties on behalf of the electorate, party interests might be placed ahead of voter interests, whereas representatives directly elected by voters are accountable to them, and “are not obliged to follow the party line in relation to issues that arise in parliament.”
What the New Nation Movementjudgment makes clear is a deep appreciation of the influence of political parties on the functioning of parliament. The perception of parliament as a “rubber stamp” institution corresponds closely with the blurred distinction between party and executive. The judgment offers several claims about the opportunities for more accountable representatives when they are answerable directly to voters instead of the party.
(HOW) DO PARLIAMENTARY COMMITTEES WORK?
While the National Assembly in plenary seems like the most significant part of the House – it has the power to remove the President and amend the Constitution – in terms of volume of work, it is largely a sideshow to its committees. Often described as the “engine rooms” of parliament, committees are how parliament carries out its work while the plenary retains the final decision-making authority – through floor votes. Committees serve an important efficiency purpose – parliament’s core mandate (of oversight, law-making, co-operative governance and public participation) is easier to fulfil when the workload is spread out among small, focused working groups.
Committees also serve as a direct oversight and accountability mechanism of the Executive – and who chairs them is responsible for the direction, effectiveness, and the impact committees can have in fulfilling their oversight role. When they perform poorly, is it because committees are not sufficiently guided or supported in doing what they are meant to or do, or is that that members (or their parties) simply don’t care?
RECONCILING A PARLIAMENT ELECTED BY A CLOSED PARTY LIST SYSTEM WITH INDEPENDENCE
Political scientist Steven Friedman offers that an alternative system would not necessarily produce independent MPs. Quite right – there are no perfect electoral systems. But, given the experience of six democratic parliaments, we have sufficient opportunity to examine the efficacy of existing processes of parliament.
Friedman suggests that the system of proportional representation and party lists are not inherently antithetical to bona fide debate and independent decision-making. He suggests that room for independence in committees grows when political factionalism is at play. Factional behaviour, however, during debate, votes, or deliberation is not truly an exercise of free will – it is just factional. In any event, even if the outcome of party disunity is more critical engagement, this leeway is insufficient.
It may be that factionalised party lines have an emboldening effect on parliamentary parties, perhaps affording members the opportunity to leverage the differences within the Executive and parties and to then vote as they think best for the outcome (legislative or oversight). Disruptive party politics, however, should not form the basis for “independent behaviour” – this needs to be supplied through institutional reform.
Relying on factionalism allows for the elective conferences of political parties, not national elections, to exist as the “true site” of democratic accountability and representation – as factions gain and lose power within their parties as a function of internal party processes instead of democratic elections. This is tantamount to delegating democracy to independent and largely unregulated organisations (political parties).
CAN WE GUARANTEE ELECTORAL ACCOUNTABILITY?
MPs are, in theory, accountable to the electorate. But it is not clear how the electorate is supposed to enforce that accountability. In a closed party electoral system of proportional representation (and is subject to closed party lists), the ballot feels like a blunt tool. Electoral accountability of any individual MP is more complicated than the possibility of changing where our mark on the ballot in a system of proportional representation – and the reasons why people vote to reward or punish incumbents are more complex than we imagine. The same voter who revolts against the political incumbent through protest, strike action or demonstration, may also express political support by voting for the very same incumbent.
One interesting conception of public office holds that it is the office which is inherently imbued with integrity and virtue, not the individual who occupies the office. When the individual fails it is not the office which is impugned, but instead it is the individual who has revealed unworthiness. What would it look like if, based on their behaviour, conduct or utterances in parliament, we could make certain determinations about the worthiness of parliamentarians to hold office? This is not to say that we abandon behavioural expectations of the individual, but rather that we reinforce the importance of the institution itself as having a kind of inherent integrity.
The interest of the New Nation Movement decision is that, while the judgment correctly shies away from making arguments about which electoral system is more likely to guarantee greater accountability, its reasoning nonetheless ventures boldly into causative relationships between the act of directly voting for individual candidates and better representation.
Will the opportunity to vote for individual candidates have a meaningful impact on voter behaviour – will it change the incentives for how we “reward” or “punish” representatives through the ballot? How do we make the determination that an individual representative is under-performing in parliament? Importantly, how much blame can we attribute to the individual versus the institution, or the party? Parliament in plenary has become little more than Twitter fodder for our derision. The chaos is now so predictable, the insults so tawdry, and the storming-out so anti-climactic, that the whole performance no longer shocks us. It remains to be seen how we, as the electorate, will measure the performance of both individual and party representatives – and whether this will empower us as voters to meaningfully incentivise parliamentary accountability.
The opportunity to vote and make decisions outside of party lines might present us with a new kind of representative not yet seen in South African politics, and new types of electoral campaigns. Constituent interests might allow for a dominance of conscience and more robust parliamentary debate. Yet unless the institution of parliament is strengthened through professionalism, greater public participation, and integrity – we will likely fall short of achieving electoral accountability.
By Kimera Chetty, Legal Researcher, HSF, 2 October 2020
 Przeworski cautions us that (political) institutional reform based on comparative models which neglect the actual conditions of an institution ignore the endogeneity of that institution – which is to say that institutions are influenced by their conditions and thus shape outcomes based on these conditions. Przeworski, Adam. (2004). Institutions matter? Government and Opposition, 39(4), 527-540
 United Democratic Movement v Speaker, National Assembly  ZACC 21
 UDM II is referred to as the “secret ballot” case as it sought a declaration from the Constitutional Court that a vote by Members of parliament in terms of Section 102 of the Constitution (a motion of no confidence in the President), could be decided by secret ballot.
Ibid page 73 ad para 188
 New Nation Movement NPC and Others v President of the Republic of South Africa and Others  ZACC 11
 Seen during the 2007/8 ANC adaptation of Macbeth in Polokwane - sans guilt. Friedman attributes the replacement of several committee members to them being considered “too independent”. https://pmg.org.za/parliament-review/article/steven_friedman
 Friedman’s observation is supported in a report by parliament Watch which records “a greater diversity of positions being voiced by different ANC MPs and increased critical engagement with members of the executive and thus greater potential for holding government officials to account.” The report attributes this to the “impact of shifts in internal party politics within the ANC” during 2017 and 2018. The full report can be accessed here: https://dullahomarinstitute.org.za/women-and-democracy/submissions/parliament-watch-national-parliament-report-2016-2018.pdf
 Special thanks to Daniel de Kadt for this insight.
 A study examining voter behaviour and “electoral accountability” – specifically the question of whether voters “punish” or “reward” politicians for poor/good service delivery – yielded surprising answers in the context of South Africa. The authors observed a negative correlation of votes for the political incumbent when service delivery improved. (de Kadt, Daniel and Lieberman, Evan. 2017. “Nuanced Accountability: Voter Responses to Service Delivery in Southern Africa” British Journal of Political Science, 50(1), 185-215. One of the reasons suggested by the authors – relative deprivation (provision of services compared to neighbours) or disappointment (with the quality of services) was positively tested in a subsequent study examining the relationship between socio-economic factors and political participation in South Africa (Von Fintel, Marisa. & Ott, George. 2017. “Political culture and participation in South Africa.” Taiwan Journal of Democracy, 13(1), 77-99.)
 Booyen, Susan. 2007. “With the Ballot and the Brick: The Politics of Attaining Service Delivery.” Progress in Development Studies 7, no. 1 (2007): 21-32
 For all his sins (and there were many), it may serve us to revisit Cicero’s conception of the public official. https://aeon.co/essays/the-classical-solution-to-the-problem-of-public-integrity