Over the past decade and more, we’ve heard much reference to the concept of “Stalingrad” legal strategy — particularly in reference to the likes of former president Jacob Zuma and embattled Public Protector Busisiwe Mkhwebane.
It is a long-term legal strategy named after World War 2’s Battle of Stalingrad and is employed by a defendant to grind legal proceedings to a snail’s pace by appealing every iteration of every ruling that is unfavourable, and by using all means possible to delay proceedings.
After following and participating in Parliament’s Electoral Reform process over the past two years, it is clear to me that Parliament has itself adopted a Stalingrad approach to its court-ordered mandate to change the manner in which we elect our public representatives.
This began on 11 June 2020, the day on which the Constitutional Court ruled the Electoral Act to be unconstitutional insofar as it did not allow independent candidates to contest in national and provincial elections.
The ConCourt gave Parliament two years to remedy the defects. Parliament then spent the two years moving at the slowest pace possible, while acting in ways that frustrate a smooth process of reform.
For starters, Parliament erred by handing over its constitutionally mandated duty of drafting the legislation to the Minister of Home Affairs, Aaron Motsoaledi, who then passed the buck to a Ministerial Advisory Council (MAC) chaired by Valli Moosa.
Surprising to many, the MAC recommended a constituency-based electoral system in line with a host of similar preceding commissions beginning with Van Zyl Slabbert 20 years ago.
Unhappy with the outcome, Minister Motsoaledi went against his own MAC’s majority recommendation, and submitted to Parliament an amendment bill that merely tweaked the existing system and, vitally so, not within the spirit of the ConCourt judgment. This slipshod bill was finally introduced to the public on 31 December 2021 for comment — with a mere six months to go before the court deadline.
The public participation process which followed was shambolic. It was only publicly advertised on a weekend’s notice and there was no public education on the bill that preceded the public hearings. It didn’t come close to the required standard of “meaningful” public participation.
Parliament then ramped up its Stalingrad strategy by applying for an extension to the 11 June 2022 deadline, which it was certain to miss due to its own shortcomings.
The Constitutional Court reluctantly gave Parliament a further six months until 10 December 2022. In the time since, Parliament has continued to act in a manner that will either see the deadline missed again or passing and submitting an unconstitutional bill to the President.
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The Stalingrad legal strategy is not typically employed by the innocent. Rather, it is used by those who seek to avoid consequences for as long as possible.
And we know why Parliament has a vested interest in avoiding electoral reform: it threatens the very stronghold parties and politicians have over our political discourse and the direction of our nation. I’ve said before, it’s like turkeys voting for Christmas.
The bill that exists before Parliament is arguably the single most important piece of legislation considered since the dawn of democracy in 1994. And the political establishment knew it was coming.
Not only is it urgent and necessary, but it has also always been on the agenda. I had the honour of serving the people of South Africa as a Member of Parliament in 1994 and formed part of the historic Constitution-making process. From those early days, it was always understood that the electoral system agreed upon then was temporary.
The intention was, and still is, to reform our electoral system to strengthen the quality of representation in our Parliament and to strengthen accountability. From the Van Zyl Slabbert Commission in 2003 to the Zondo Commission this year, the view is consistent: total electoral reform is how to prevent State Capture, increase accountability and attract the best and most talented to serve in government.
Despite this, Stalingrad tactics have been used by successive governments to ignore the recommendations of the numerous commissions. It required a protracted legal battle, beginning in 2017, to kickstart progress.
Three high court hearings, Three Constitutional Court hearings, 17 senior counsels, a draft Private Members Bill, and millions of rands in legal costs, and we are that much closer to real change.
Since the extension was granted to Parliament, its Home Affairs Committee has made material modifications to the bill that was presented to the public in January. Questionably, it has declined to take this second version back to the public for further consultation, which raises constitutional concerns.
Without sounding alarmist, with this refusal — coupled with its antagonistic approach towards civil society — there is a high probability that they will not make the deadline. This would place our country in a constitutional crisis we can ill afford.
To avoid this, a collection of civil society organisations will ask Parliament to appoint a special subcommittee task team provided for in Rule 151 read with Rule 286 of the Rules of Parliament. These sections allow for a subcommittee to be appointed that extends beyond just Members of Parliament to consider specific matters pertaining to constitutionality and procedure. These are:
- The classification of the bill. Currently, the bill is classified as a Section 75 bill that does not affect provinces. We are of the opinion that it does affect provinces and ought to be tagged as a Section 76 bill;
- To consider the process of readvertising the material and substantive changes to the bill in terms of Rule 286 of the Rules of Parliament;
- To discuss the constitutionality of the bill; and
- To consider a sunset clause for the current version of the bill to allow for a more far-reaching reform before the 2029 elections.
The task would include Members of Parliament, IEC officials, all legal stakeholders and civil society organisations. We are convinced this is the most appropriate remedy available at this stage to foster real participation and to deliver electoral reform in the spirit of the constitutional court’s judgment.
Time is not on our side, and we need to act to avoid a constitutional crisis, or worse still, an election in 2024 that is not free nor fair. DM