The problem with the Electoral Bill

Dave Steward says provinces are too large for multimember constituencies

Submission on the Electoral Bill

22 February 2022

Yesterday the FW de Klerk Foundation submitted its comments on the Electoral Amendment Bill to the Home Affairs Portfolio Committee.  

The Bill has been drafted to rectify defects in the present Electoral Act in response to a Constitutional Court judgement on 11 June 2020 that ruled that the present act is unconstitutional because ”citizens may be elected to the National Assembly (NA) and Provincial Legislatures (PLs) only through their membership of political parties.” The Court ordered the National Assembly to amend the Act within two years, in effect, to make it possible for independent candidates to stand for national and provincial elections.

In the Foundation’s view, this provides Parliament not only with an opportunity to address the situation of independent candidates, but also to address other serious shortcomings in the present electoral system.

The current electoral system fails to meet important constitutional requirements.   In particular, it falls short of the foundational requirement for a system of democratic government that is accountable and responsive - because there is no provision for any kind of meaningful relationship between voters and their elected representatives.

This makes it difficult for elected representatives to be responsive to the needs of voters – since voters seldom have any idea of who their elected representatives are.

It has also resulted in a de facto situation where members of the National Assembly and provincial legislatures are accountable, not to the electorate - but to the leaders of their respective political parties.

This has seriously diluted of the separation of powers between the legislature and the Executive. The leadership of the governing party controls both the executive and the majority in the National Assembly. Its stranglehold over MPs is further tightened by a constitutional provision that MPs who lose their membership of the party that nominated them, also lose their membership of the National Assembly.

Under these circumstances it is unsurprising that MPs are reluctant to carry out their core role of scrutinizing and overseeing executive action. Their failure to do so has been revealed in the most shocking detail by the Zondo Commission.   In 2016 it also led to the Constitutional Court’s scathing rebuke of the National Assembly for failing to “scrutinise and oversee executive action”.

Following the Constitutional Court’s June, 2020 Judgement, the Minister of Home Affairs, Dr Aaron Motsoaledi, appointed a Ministerial Advisory Commission (MAC) under the chairmanship of Mr Valli Moosa to develop and recommend policy options to address the defects of the Electoral Act.

On 9 June 2021 the MAC presented two options for the rectification of the defects in the Electoral Act:

The first option would be similar to the present electoral system – except that provinces would serve as multi-member constituencies for 200 of the National Assembly seats in which independent candidates would be able to stand for election. The number of MPs elected by each provincial constituency would be determined by the number of registered voters in the province. The remaining 200 seats would be contested as now on a PR basis.

In the second option the country would be divided into 200 constituencies that would be contested on a first-past-the-post basis. The remaining 200 seats would be elected on a PR basis in such a manner that seats won by parties would accord with their overall shares of the votes .

The government chose the first option because, it claims, it makes provision for the accommodation of independent candidates; because of its relative simplicity and because it accords so closely with the present electoral system.

The FW de Klerk Foundation respectfully disagreed with the Government’s decision:

Multimember constituencies based on the present provinces will be far too large to permit the type of close relationship between elected representatives and their communities that true accountability and responsiveness require.

Independent candidates – by their very nature – generally emerge from specific communities and would probably find it difficult to compete effectively in single province-scale constituencies. They would also be at a disadvantage vis-à-vis much better resourced political parties.

Candidates will be elected if they receive a previously calculated quota of votes. However, votes for independent candidates that exceed this quota will simply be lost – while all votes cast for candidates who are members of political parties will accrue to their parties for the purposes of proportional representation . This will result in a constitutionally unacceptable situation in which votes cast for independent candidates will have less value than votes cast for members of political parties.

The Foundation broadly favours the approach in the MAC’s second option – except that it recommends that

there should be 250 – 300 single member constituencies and 100 – 150 PR representatives.

independent candidates should comprise a collective – that would have the status of political party - to ensure that they receive a number of seats proportional to their overall share of the vote;

elections within constituencies should take place on a preferential vote basis (as is practised in Australia. ) Should no candidate succeed in winning a majority of the first preferences cast, the second/third/fourth preferences of losing candidates should be allocated to surviving candidates until one emerges with an overall majority. This system helps to avoid extremist outcomes and ensures the highest degree of general consensus;

vacancies in constituencies should be filled by way of by-elections;

MPs elected in constituencies who lose their party membership should not lose their membership of the legislature.

The Foundation sincerely hopes that Parliament will adopt a new Electoral Act that will empower elected representatives to be more accountable and responsive to the electorate.

Dave Steward is chairman of the FW de Klerk Foundation.