As we have come out of the Judicial Service Commission (JSC) interviews for the office of the Chief Justice of the Constitutional Court one thing was clear, namely that the quality of our politics has deteriorated. The same is evident when we examine the discourse in the National Assembly. Our apex legislative body burnt down long before the fire. In the ashes lie the principles of accountability, custodianship and meaningful representation.
We have a once-in-a-generation opportunity to reform the system as a result of the July 2020 Constitutional Court decision in the New Nation Movement judgment. The court held that the Electoral Act was unconstitutional in so far as it did not make provision for independent candidates to contest in national and provincial elections.
The conversation about electoral reform has been going on for more than 23 years. We are now approaching the finish line and we must take care to implement the best version of reform for our sake and the sake of future generations.
There have been many false starts. When President Nelson Mandela left office in 1999, he called for a review of the electoral system. In 2002 President Thabo Mbeki established a task team, led by the late Frederik van Zyl Slabbert, to examine this matter. In 2003 the electoral task team released its final report. The report called for an alternative electoral system which combined constituency and proportional representation models, a mixed system. In 2006 the National Assembly appointed an independent panel to assess the electoral system, and the committee found that the system needed urgent reform. In 2017 the Motlanthe High Level Panel recommended the amendment of the Electoral Act to provide for a system that makes MPs accountable to defined constituencies.
So why is the Lekota bill the best option we have? The key features of the proposed bill are first that it introduces 52 multimember constituencies for the national and provincial elections; second that it introduces open lists for elections; and third that it allows for transferable votes among independents. It captures the best of both worlds and allows for constituency-based accountability and proportionality. It also honours the spirit and letter of the Constitutional Court judgment.
Having defined constituencies allows for communities to directly raise issues with specific individuals and to be able to track their performance and the quality of their representation. If an MP fails to deliver, they can be held to account through the media, through social media and ultimately through the vote.
Having open lists allows for the public to see who exactly they are voting for, tears down the veil of the party and allows for real scrutiny of whether candidates are fit for purpose. This is important because there are so many issues of service delivery in this country, issues of corruption and capture. It is important for voters to be able to know who exactly will be representing them, not simply to know which party.
Having transferable votes allows for the will of those choosing independent candidates to be given full effect. A careful reading of the judgment shows that the court did not wish for a superficial remedy but one that gives effect and meaning to every vote. The court emphasised that the vote of every citizen is a badge of dignity and personhood. The court has also emphasised that the right to free and fair elections includes the right to compete on equal terms.
This aspect of fairness is undermined by the bill that has been proposed by the Ministry of Home Affairs. The alternative bill creates lower thresholds to obtain seats for political parties than for independents, and creates an unconstitutional outcome of wasted votes. If a candidate, say Mr Upright X, obtained 250,000 votes and only needed 50,000 to get a seat, his surplus votes would be discarded and also allocated to the parties in the proportional allocation, helping them get more seats. This is at odds with the will of those who will be voting for independent candidates precisely because they do not support political parties.
In his seminal work The Wealth of Nations Adam Smith argued about the virtues of the free market and more specifically the idea of the invisible hand. In brief, he argues that market actors, acting in their best interests, optimise the performance of the market in a way that a controlled market could not. This is what independent candidates offer to our democratic system – a vibrancy and an efficiency that political parties simply cannot, and quite frankly have no incentives to, offer.
A Member of Parliament is meant to have an obligation to the Constitution and to the general population; they are meant to represent the interests of the people over and above all else. Unfortunately, this is not how our democracy has turned out. Far from the intended design, the politicians have placed party over country repeatedly and failed to honour the spirit and letter of the Constitution.
This is because the Members of Parliament do not represent the people, and they have no independence. In order for us to preserve this democracy, we have to improve the quality of representation and accountability, and the Lekota bill would accomplish this. It is not only desirable, it is fit for purpose and honours the work of many who have called for electoral reform, from Nelson Mandela to Frederik van Zyl Slabbert.
Last, it is worth considering if this is even the right time to vote on the Lekota bill. Public comment in the draft electoral bill of the Ministry of Home Affairs is only expected on 21 February. The ministry proposal has not yet received robust engagement.
Removing the Lekota bill from consideration at this stage would create a single option for public consideration and this would be harmful to the quality of the debate and the eventual deliberation. The vote is premature considering all the relevant factors.
The least that can be expected is a postponement on voting on the desirability of the Lekota private members bill, allowing Members of Parliament to weigh the benefits of both bills. It would be disingenuous to vote on whether a particular bill is desirable before all public comment has been received and considered.
The One South Africa Movement will be closely monitoring proceedings on 8 February and will consider all options at hand, depending on the outcome. DM