I was on the Ministerial Advisory Committee (MAC) advising the government on how to respond to the Constitutional Court ruling in favour of the right of independent candidates to contest national and provincial elections. I was also part of the bare majority in the MAC whose recommended response, an additional member system, was rejected.
I support a challenge to the new electoral law in the Constitutional Court, not on the grounds that it unfairly burdens prospective independent candidates, but exclusively on the grounds that the new electoral system has the potential to undermine the constitutional requirement of proportionality.
To be frank, this electoral reform process has been a mess from the beginning.
For a start, the New Nation Movement’s complaint on behalf of the right of independents to stand for election misidentified the problems with South Africa’s outgoing system.
That system has actually served the country pretty adequately, guaranteeing fair representation of all of the country’s interest and opinion groups. To the extent that there was a problem with it, the problem was not the absence of independent candidates, but the absence of local representation or of direct accountability to voters on the part of members of Parliament.
The Constitutional Court earnestly affirmed the right of South Africans to stand independently of parties, a reasonable reading of the Constitution.
But the ConCourt does not consist of electoral system experts, and it did not sufficiently consider the possible consequences of tweaking just one element of a complex electoral structure.
Unless the system as a whole is reformed in a thoughtful and coherent way, a tweak has the potential to generate a general incoherence, and that is what this tweak — the Electoral Amendment Act — has done.
The ConCourt was misdirected by plaintiffs, but it has to share some blame here for the debacle. Its judgment left politicians too little time to effect a significant constitutional change.
The unsurprising response of the ANC government to this time pressure was to opt for a reform that accommodates the ConCourt judgment with as little disruption as possible, which is what it did.
But the result is not good.
There are only two natural ways to accommodate independent candidates in a proportional electoral system.
One is through an additional or mixed member system, a variant of which is already operative in local government and a different variant of which the MAC majority recommended. Here independents can compete with party-supported candidates to win the single seat at stake in a constituency.
The other is through a system of ranked preference voting for individual candidates, such as Single Transferable Vote, which allows independent and party-supported candidates to compete with each other in multi-member constituencies.
Instead, the government opted for the MAC minority recommendation in favour of simply inserting independent candidates into the existing system of closed party-list proportional representation. This creates a unique hybrid in which independents have no natural place.
The problem, which I identified from the beginning in the MAC discussions, is that in such a hybrid there is no adequate way of dealing with excess votes that accrue to an independent candidate.
By excess, I mean votes beyond those required to win a single seat in Parliament. Fifty per cent of all the voters might cast their vote for one wonderful independent. How many seats would that half of the electorate have in Parliament? Precisely one, with the remaining 399 seats shared among other parties.
An independent is one person, and can only fill one seat. A successful independent candidate in effect cheats their own voters out of representation — in this scenario, out of 199 seats worth of representation.
On the general question of accommodating independents, I have mixed views. There is no reason why a person should not be able to stand independently of parties, but there is also a risk that a proliferation of independents will weigh down ballot sheets, confuse voters and result in MPs who, between elections, are accountable to no one but themselves.
A fair proportion will be opportunists and local “Big Men”. Still, there are electoral systems that can “safely” accommodate them. The newly adopted one cannot.
Things might work out fine, proportionality-wise, if not too many independents stand or they do not win too many votes. That might even be the most likely scenario.
But if popular independents win votes that exceed the number required to win one seat, or lots of independents win votes that fall short of the number required to win the next seat, many votes will be wasted.
That risk exists, and it ought to be sufficient grounds for the ConCourt to strike down the new act, require that the 2024 elections be held under the now-outgoing system, and that a new system be devised in time for the 2029 elections that offers a democratically safe way of accommodating independents.
The grounds for striking down the new Act should be that it threatens the constitutional requirement of proportionality. It cannot be that it burdens independents with tougher eligibility requirements or tougher quota thresholds: indeed the new hybrid provides a reasonable path for independent candidates to win seats, a better chance than they would have in many of the world’s electoral systems.
In that sense, it meets the ConCourt’s narrow requirement. The real threat posed by the new system is to fair — by which I mean proportional — representation of voters. DM
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It doesn’t affect my overall point at all, but my example is technically wrong – there are only 200 seats at stake in the regional ballot on which independents are eligible to stand, so the maximum number of votes that could be wasted if the independent got 50% of the vote is 99, not 199. And that would require the independent to stand in all provinces, which they can do, and get all of the provincial votes. But the basic point is that all votes surplus to what is required to win one seat will be wasted.
Or more precisely still: there are only 200 seats at stake in the regional ballot on which independents are eligible to stand, so the maximum number of seats’ worth of representation that could be wasted if the independent got 50% of the vote on the regional ballot is 99, not 199. And that would require the independent to stand in all regions, which they can do. But the basic point is that all votes surplus to what is required to win one seat will be wasted.
Section 9 of the Bill of Rights makes us all equal before the law and bans unfair discrimination. The new electoral dispensation discriminates unfairly against both independent candidates and those who vote for them. It is inconsistent with section 9 and accordingly invalid, unconstitutional and liable to be impugned successfully. The lack of proportionality argument will also succeed.
It’s worrying that there are so few responses, so it’s important to state the case much more clearly than in this article.
Daryl, what is your viewpoint on independent candidates being allowed to nominate their successors as well as the candidates to which the excess votes must go? The so-called “Peoples’ Bill” that was proposed by COPE President Lekota proposed this in the form of candidates being allowed to submit a list of “beneficiaries” to the IEC a month after the close of the candidates selection process (I infer that these “beneficiaries” would be required to be candidates already on the ballot, either as independents or as candidates of political parties). Do you think it can work or can you think of another way that this must be operationalized? After all, this is effectively the same as what political parties are allowed to do; their excess votes go to other candidates nominated by the same political party.
Paul Hoffman, I don’t believe this Act unfairly discriminates against independent candidates. The only proportional system in which independents could compete with parties on absolutely equal terms is a system of STV in multimember constituencies, and one moreover without without compensatory seats from national party lists. This is a relatively rare system and, although a case can be made for it, to insist before the court on absolute parity between parties and independents is, in effect, to invite the Court to impose pure STV. In fact independents have a better chance of being elected under this new legislation than in many systems practiced around the world, and independents cannot complain about their excess votes being wasted as their interest is solely in getting themselves elected as a single individual, which they can accomplish under this new system. It is the independents’ voters who are discriminated against in those instances where independents get enough votes to justify more than one seat but can fill only one. Which is to say, the constitutional requirement of proportionality is undermined. That must be the sole basis of the complaint.
Roelf Pretorius, there are indeed various imaginable options under which independents could nominate recipients of their surplus votes, and permitting them to do so would be an improvement on the new arrangement. The only requirement is that voters be clearly informed of which party will receive excess votes from the independent they voted for. However, I anticipate that in such a system independents will come to be seen as surrogates for the party nominated to receive their excess votes.