Electoral System and Accountability: Options for South Africa

ADDRESS BY STEVEN SWART ACDP MP
AT THE CONFERENCE ON
ELECTORAL SYSTEM AND ACCOUNTABILITY: OPTIONS FOR SOUTH AFRICA
HOSTED BY THE KONRAD-ADENAUER-STIFTUNG
AND THE ELECTORAL INSTITUTE OF SOUTHERN AFRICA (IESA)

TUESDAY 28 AUGUST 2007
VINEYARD HOTEL, CAPE TOWN

Master of Ceremonies, Dr Werner Boehler, fellow MP's, MPL's, foreign guests, representatives of academic institutions and the media, may I firstly thank the Konrad Adenauer Stiftung and the Electoral Institute of Southern Africa for hosting this event and for the kind invitation to participate on this panel.

The South African Constitution determines that our 400 members of parliament must be elected in terms of an electoral system that "results in general, in proportional representation". There is a worldwide trend towards such systems as they are regarded as being eminently fair and reflect the will of the voters most accurately. They are particularly useful in emerging democracies as they are inclusive.

Our present system is a two-tier, one ballot, with nine multi-member constituency (200 representatives) compensatory system. It is not a straight PR system as we have nine MMC's and one national list.

The ACDP is on record as supporting the retention of the proportional list system for the immediate future. We appreciate concerns expressed regarding accountability and are thus prepared to consider other electoral models in the long-term as our democracy deepens and becomes more stable. We, too, are opposed to floor-crossing and joined the UDM and the IFP in the Constitutional Court battle. We support electoral reform to do away with floor-crossing in its entirety.

James and Hadland have identified four values that are inherent in our constitutional order and electoral system; namely fairness, inclusivity, simplicity and accountability.

Tom Lodge summarised each as follows:
"Fairness relates to those aspects of the system that ensure that every vote is of equal value and that the parties are treated fairly in their representation in parliament. Inclusivity refers to the need for a system to be as all-embracing as possible in terms of drawing in groups across the political spectrum to induce shared goals and shared values between them. The system should also be inclusive through ensuring that all groups, however, they may be defined, are represented within legislatures. The system should be simple, open and easy to understand."

INCLUSIVITY

There can be no doubt that the present system is inclusive. Rather have far left wing and far right wing representatives in parliament than throwing stones outside parliament. Small parties have the best chance of representation since all votes cast for them country-wide are taken into account.

It is significant that the Constitutional Court in over ruling the Electoral Court's decision and allowing the ACDP to contest last year's municipal elections in Cape Town emphasised the principle of inclusivity and enfranchisement as opposed to exclusion and disenfranchisement.

It would be premature in our nation's development and, with a history of exclusion, it is all the more necessary to retain maximum representation of voices. With all the more fractures in our social fabric, and lack of social cohesion - as indicated in the succession battle - no sector, be it demographic minorities or political minorities should feel excluded from the process. The principle of inclusivity is thus almost a guarantee of political stability - particularly where certain sectors feel more and more marginalized.

SIMPLICITY

The system is simple - with voters understanding the system/ballot paper well and the percentage of spoilt votes has been low. The one comment in our experience has been the confusion between the African Christian Democratic Party and the United C hristian Democratic Party. The IEC in our view should not have allowed the registration of a similar named party that has led to confusion with voters and many spoilt ballots.

Much has been said regarding accountability. However, I would like to touch on the core values of inclusivity and simplicity. During the ETT Review Roundtable in 2002, an elections administrator commented that the local government elections were anything but simple, and were in effect ‘extremely difficult'. He indicated that they struggled in terms of voter education to explain the system to people and that in his experience the majority of people still do not understand the combination system used, and that this contributed to the very low voter turn-out during the local government elections.

As a practical example, we, as the ACDP, were obliged to approach the Constitutional Court last year after we were excluded from contesting Cape Town after a technical hitch in the registration process. Regrettably, neither the IEC nor five Electoral Court judges were prepared to assist us, and we were obliged to approach the Constitutional Court at great cost and on an extremely urgent basis. The Court, disagreeing with both the IEC and the Electoral Court, held that foundational constitutional values of section 1 require a court to seek " to promote enfranchisement rather than disenfranchisement and participation rather than exclusion." It held in fact that the ACDP complied with all statutory provisions of Municipal Electoral Act, 27 of 2000. I'm aware of various other parties that were disqualified at the registration stage.

The point is that our two - tier system with SMC's and a national compensatory closed list at local government level is quite complex, and the majority report's proposed MMC would require 69 separate constituency lists (300 names) and a national list of 100 names. The report states that " (T)o achieve the same results as with the current system would require careful planning on the part of political parties but there is no inherent reason why the result could not be as successful."

We need to take care that we do not over compensate for accountability and risk simplicity and inclusivity.

FAIRNESS

The system is fair, which is a fundamental requirement of legitimacy. There is a direct relationship between support gained and seats allocated.

An election must be conducted on the basis of rule s and procedures that are fair and just which will form the basis of the electorate's acceptance of an outcome. The rule of natural justice must be applied.

An administrative body must act fairly, implying acting within the rules of natural justice ie giving an interested party an opportunity to be heard before a decision is made and the decision maker being unbiased.

The ACDP trusts that the requirements of "enfranchisement rather than disenfranchisement and participation rather than exclusion" as laid down by the Constitutional Court in our matter will be followed by the IEC when considering alleged non-compliance with electoral provisions.

ACCOUNTABILITY

As we have heard today, the main criticism of our proportional list system is the lack of accountability of MP's to constituencies with MP's being accountable to their party and not to the electorate. The party then has to account to the electorate for its performance and that of its MP's.

There should however be a duality of accountability - MP's being accountable to both one's political party and to one's voters. We agree that the link between members and voters must be improved to ensure that people do not feel alienated. The question is how?

In the Justice Portfolio Committee, we are at present considering the Constitution Thirteenth Amendment Bill and the Cross-Boundary Municipalities law Repeal and Related Matters Amendment Bill to deal with the consequences of the Constitutional Court challenge by Matatiele Municipality resulting in the striking down of the Constitution Twelfth Amendment Act 2005 and the Cross-Boundary Municipalities Laws Repeal and Related Matters Act 23 of 2005 du e to a failure by the Kwazulu- Natal Legislature to hold public hearings on the matter.

Matatiele residents felt excluded from the process and had to go to the Constitutional Court to have their objections heard. How do they now hold their elected representatives at Provincial and National (NCOP) level accountable for the decisions taken and to be taken following new public hearings to be held, or do they have to wait for the next election.

Would the proposed model result in greater pressure being brought to bear on elected representatives? In this case elected representatives in the Kwazulu- Natal provincial legislature did not hold public hearings on a matter relating to provincial boundaries being redrawn.

It was common cause during the ETT Review Roundtable that an electoral system of whatever kind cannot solve the problem of accountability. It can at best contribute to it in some way.

As Adv Pansy Tlakula, the Chief electoral officer at the Electoral Commission has said, "an electoral system on its own cannot make elected representatives accountable. At best, it can be a conduit through which the people can hold their elected representatives accountable."

Dr van Zyl Slabbert made an important point when he said, "We soon realised that we were not going to sacrifice the benefits of the current electoral system in pursuit of the ideal concept of accountability, because we do not know what that is."

What should we learn from Khutsong where constituency -elected ANC ward councillors have been forced out of the West rand township. Surely violence can never be condoned - but was this not a case of disgruntled voters whose desire to choose to which province they would belong was not being considered at provincial and national representatives.

As far as the ACDP is concerned, we are familiar with SMC's and PR and the MMC's at national level (regional representation). We would need to explore the implications of any theoretical model to ensure that it resulted in the same representation we enjoy under the present system to ensure INCLUSIVITY. We need to be very careful that inclusivity and diversity are not traded off against accountability.

Smaller parties or parties representing special interests must be catered for in a system that ensures that all votes cast country-wide are taken into account.

The majority report of the Electoral Task Team indicated that the practical effect of the proposed model of multi-member constituencies (nine provincial constituencies expanded to some 69 to elect 300 seats) with a compensatory closed national list providing 100 seats, will result in the same representation of smaller parties.

If the proposed model strikes the balance between accountability and core values of fairness, inclusivity and simplicity, then this is indeed a model that warrants serious consideration.

For the immediate future, however, the ACDP believes that the status quo should be retained.