A proposed new electoral system is complex to understand, complicated to implement, and less fair than the current systems for national, provincial and municipal government, writes Valli Moosa.
Free and fair elections. This is one of the greatest successes of the South African democracy.
A new electoral system is under consideration by Parliament at present and we should all be alarmed because it places this monumental achievement of the freedom struggle at risk. The proposed new system is complex to understand, complicated to implement, and less fair than the current electoral systems for national, provincial and municipal governments. The right of the people of South Africa to choose their own government is the constant heartbeat that keeps our democracy alive – to tinker with this, is to tinker with the lifeblood of our democracy. Our parliamentarians should tread very, very carefully. Our Constitution firmly entrenches human rights. The Bill of Rights can only be amended by a supermajority of two-thirds.
But the Constitution, in its very first clause, has a set of four values that occupy a status higher than the Bill of Rights.
The Values are:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the Constitution and the rule of law.
(d) Universal adult suffrage, a common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.
This first clause of the Constitution was colloquially referred to among the members of the Constitutional Assembly as the unalterable clause. Clause 74(1)(a) of the Constitution requires a 75% vote in Parliament if it is to be amended – a super, supermajority. The intention is that it should never be changed.
Loss of trust
Such is the worth that is given in the Constitution to the right to vote. These short values constitute the soul of the Constitution. They are the values of the great South African freedom struggle.
It is no wonder that the sight of millions of people lining up to vote on 27 April 1994 has become the iconic symbol of our freedom. Fiddle with the right to vote thoughtlessly, or tamper with it for narrow party political advantage, if you want a mass rebellion. Create an electoral system that is so complicated and riddled with obfuscation, and you will run the risk of voters doubting the veracity of the outcome of elections. Recall the ease with which Trump was able to convince people that he was cheated. This was in no small way possible because of the complex US electoral system.
Parliament has so far rejected much of the public opinion. Since 1994, three high-level advisory bodies were established by the government. Fredrick Van Zyl Slabbert led the first, the second by former President Kgalema Motlanthe and the third and most recent Ministerial Advisory Committee (MAC) chaired by myself. Parliament has rejected the majority recommendation of all three of the advisory bodies. Bear in mind that each one of these was an official body. The bill under consideration proposes an entirely new electoral system. Incredulously, it was not proposed by any of the political parties, civil society organisations or academics who spoke to the Ministerial Advisory Committee.
According to the new proposal, each province will be a gigantic constituency. A voter in the Eastern Cape, for example, will behave to choose between voting for an individual independent candidate of her choice or for a political party. After the election, it is proposed that the first quota for each seat is calculated and all independents qualifying are allocated a seat. Then, all the votes of such candidates are cancelled from further counting. The second quota of a smaller size is determined, and again those independents that qualify are allocated seats. The votes that were cast for the second round of independents are then cancelled. After these two rounds are completed, the remaining seats are allocated to political parties by means of a third quota.
A disaster in waiting
The proposed system constitutes a disaster in waiting on a number of grounds.
Firstly, it is a completely new electoral system not backed-up by any literature or analysis. Not a single political party, including the majority party, has published an analytical paper – explaining the wisdom of the proposed new system. This is a system that does not exist anywhere in the world – perhaps for good reason. Without any political analysis and without any mathematical analysis, the risk of unintended consequences is very high.
Secondly, it violates the constitutional requirement of proportional representation. Votes cast for independent candidates above a certain quota are discarded – removed from the count. Gone is the now long-held strength of our electoral system that ‘every vote counts.
Thirdly, it is so complex and complicated that hardly anyone in the political leadership of our country seems to understand it. I have personally spoken to a number of them. Not only are they unable to explain the thinking behind the proposed system, but many also have no knowledge of it. It would be safe to assume that most ordinary members of the EFF, DA and ANC have not been consulted on the proposed system. A system shrouded in mystery provides fertile ground for Trump-like claims of being cheated.
Fourthly, the principle of one person one vote of equal value is disregarded. A voter can either vote for an independent or vote for a party list. If the voter puts an “x” next to the name of an independent, she gets to influence the filling of one seat in Parliament. If the voter votes for a party list, she gets to influence the filling of up to 80 seats. It makes one think of PW Botha’s Tricameral Parliament in which Coloureds and Indians were given the vote – but just not one of equal value.
Fifthly, in this complex system, the name of every independent candidate from anywhere in the Eastern Cape Province (as an example), and each political party, will feature on one ballot paper.
If the constituency is to be as large as the province, the ballot paper will run into many pages. In the 2021 local government elections, there were a total of 11 237 registered candidates in the Eastern Cape. Even if a mere 10% of these run as independents in the national elections, there could be over 1000 independent candidates in the Eastern Cape. So even with fairly stringent requirements for candidates to qualify, the numbers will be large. Imagine the situation where a voter in the Eastern Cape is confronted with a ballot paper containing 1200 candidates! Some proponents of the new system suggest that the number of independent candidates can be reduced by setting extremely onerous requirements for independents to qualify. It has even been suggested that a candidate should be required to collect up to 20 000 signatures. The candidate will have to properly administer this so that each signatory’s identity is positively verifiable in court if need be. Only a super-rich candidate will afford the administrative machinery to put this together in all the meticulous detail.
In short, the ordinary candidate will simply be disenfranchised.
A sixth point to make is that when a vacancy occurs, the by-election will have to be in the form of a provincial election. A system that results in frequent provincial elections is frankly ridiculous. The final glaring observation is that the constitutional principle of proportional representation is being abandoned. All this complexity and obfuscation to feed the mortal fear our political parties have of granting voters even a tiny modicum of any kind of direct representation!
The reference to the system being proposed as “minimalistic” is nothing more than a marketing spin.
– Valli Moosa was one of the architects of the Constitution. He also served as Minister of Constitutional Development under President Mandela. He was a leader of the Mass Democratic Movement in the 1980s and served on the National Executive Committee of the ANC from 1990 to 2009.
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