ANALYSIS

ANC discussion document sidesteps need for electoral reform

By Marianne Merten 23 November 2020

The newly elected ANC top 6 on 18 December 2017, from left: Jessa Duarte, Ace Mashagule, Gwede Mantashe, Cyril Ramaphosa, David (DD) Mabuza and Paul Mashatile. (Photo: Gallo Images / Alet Pretorius)

A constitutional amendment to exclude independent candidates in provincial and national elections is one option mooted by the ANC National General Council discussion document. While this may deal with practical difficulties, it closes the door to the needed debates on electoral reform.

The ANC National General Council (NGC) discussion document headed “Electoral systems and the building of a national democratic society” is narrowly focused on two issues: holding all elections on the same day, and the possible introduction of constituencies. 

The latter discussion point is crucial because of the June 2020 Constitutional Court ruling that independent candidates must be accommodated in national and provincial elections, giving Parliament a deadline of June 2022. 

Five months down the line, no such draft law is before Parliament as Cabinet has yet to give its approval and go-ahead. 

The clock is ticking: Election draft law waits for a slot in Cabinet’s in-tray

As far back as 18 August 2020, Home Affairs Minister Aaron Motsoaledi asserted the need for constitutional changes and said that the executive would do that, without giving a time-frame. “Remember, it is the executive [that] must come with a policy. That is the draft we are still working on.” 

On average, it takes two years to process a law through Parliament. With a Constitutional Court deadline of June 2022, just two years before the 2024 elections, it’s a tight timeframe. 

The anticipated complex practical arrangements to include independents, from ballot papers to amendments to proportional representation, are daunting. Other system changes include the recalibration of parliamentary speaking time and committee representation. 

The discussion document on South Africa’s electoral system is one of 12 prepared ahead of the ANC NGC, its mid-term assessment, now scheduled for April or May 2021. 

“Consideration should be given to ap­proaching the Constitutional Court for clar­ity on the implications of its judgment, and extending the deadline,” it proposes. 

But going back to the court to ask it to explain what it meant isn’t really the done thing. That’s the domain of political leadership and is up to the policy wonks and, ultimately, Parliament’s legislative processes. 

The ANC NGC election systems discussion document proposes as one of three options, to “amend [the] Constitution to make it clear that [the] electoral system can exclude in­dependent candidates”.

Any proportional representation would have to be on party lists – that would effectively nix independents – or a mixture of party-list proportional representation with constituencies. 

“Par­liament can provide for independent candidates but makes it clear that this is not required,” according to the discussion document. 

Another option was a fundamental redesign of the electoral system to “introduce ele­ments of constituency-based repre­sentation while ensuring that electoral outcomes are proportional”. 

The last option is introducing minimal changes to the current proportional representation system. However, parliamentary lawyers have already indicated that, for example, simply adding “independent candidates” into the various sections of the law would be inadequate. 

Curiously, the discussion document links the Constitutional Court ruling on independent candidates to the National Assembly’s election of a president, about which the judgment says nothing. 

“The judgment does not imply direct elec­tions for president. However, it opens the door for someone to stand as an indepen­dent candidate for Parliament and then be elected as president by Parliament.” 

The reality, and the constitutional requirement, is that a president needs the majority of the 400 MPs in the House. To date, that’s meant the ANC gets its choice – and that’s set to continue until the ANC slides below 50% in electoral support.

But that throwaway paragraph is a window into how important executive power is to the ANC, given its longstanding strategy to gain control of the levers of state power and the underlying need to win elections to do so. 

South Africa’s superheated and factional politics give rise to tensions between loyalty to the party that selected its member for election as public representatives, and the requirements of an oath of office to uphold and be loyal to the Constitution. 

The Nkandla saga illustrated this. In March 2016, the Constitutional Court found Parliament had acted in a manner “inconsistent with the Constitution” and unlawfully by adopting a resolution to absolve then-president Jacob Zuma from paying anything for the (non)security upgrades at his rural homestead after the Public Protector said he must repay a percentage spent on the cattle kraal, chicken run, amphitheatre and swimming pool. 

The tensions again emerged in 2017 amid the push for a secret ballot in the umpteenth no-confidence motion against Zuma. When in early 2017 the United Democratic Movement (UDM) successfully approached the Constitutional Court for a secret ballot, it was not before having to traverse what Zuma in his court documents called the “Party Discipline Principle”. 

Party/State conundrum: Holomisa and Zuma go head to head in court bid over a secret ballot

Effectively, the party trumps public office. As MPs are elected from party lists, Zuma argued, “this obliges a member of a party… to remain loyal to such party consonant with the expectations of voters who gave their support to the party. The obligation of loyalty to a party is not inimical to the notion of an accountable, responsive, open and democratic government”. 

Except that didn’t quite happen in the Nkandla saga, nor in State Capture, as the Zondo Commission is hearing. Or, most recently during the Covid-19 tender scandal that saw the politically connected benefit from government tenders. And the to-ing and fro-ing about ANC public representatives stepping aside once criminally charged shows an ambivalence that has alienated many in the society the ANC claims it leads. 

And so the election systems discussion document cannot be divorced from others like the review of its “Through the Eye of the Needle” document, which deals with the integrity of leaders. 

ANC’s Eye of the Needle document up for review as party bemoans ‘capture’ by career opportunists

The discussion document cites research and polling about increasing disillusionment with South Africa’s party political system – and also the impact of fake news, money in politics and Covid-19. It does not close its eyes to the decline in voter turnouts and ANC voting support, but largely offers as antidotes renewal and renewed “revolutionary morality”. 

Elections are central to the ANC in a way that goes beyond casting a ballot. Or, as the discussion document puts it: 

“The major advantage of separate [elections] is the fact that it forces us to connect with the people and renew our mandate as well as listen to and focus on people’s problems and explain what we have done.” DM

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