South Africa Has Changed Its Electoral Law, But A Much More Serious Overhaul Is Needed
BY MASHUPYE HERBERT MASERUMULE
TSHWAYNE UNIVERSITY OF TECHNOLOGY
PRETORIA, SOUTH AFRICA
South African president Cyril Ramaphosa recently signed into law a change to the country’s electoral act to allow individuals to contest national and provincial elections independently of political parties. The change follows a June 2020 constitutional court judgment that the Electoral Act was unconstitutional because it didn’t allow independent candidates.
But in my view the change corrects one wrong by creating another, especially concerning the principle of proportionality.
For instance, it does not matter how many votes independent candidates get. Once they have reached the electoral threshold to secure a seat in the legislature, any extra votes would not count. For political parties, extra votes count towards securing another seat. (A trend that has emerged over the years has been that a party needs at least 40,000 to 45,000 votes to secure a seat in the national assembly.)
Thus various civil society formations have headed to court to challenge the inherent injustice in the changed law. The existing electoral system is, by design since 1994, inherently biased towards a party system.
Based on my work on electoral democracy in South Africa, and on the Electoral Commission of South Africa (chapter 4), I think the legislated changes and much of the discussion about independent candidates miss the point. What’s needed is to completely overhaul the electoral system, lest it continues to churn out minute parties, resulting in intractable coalition politics. This is already in evidence through governance impasses in the country’s metropolises.
The constitutional court’s decision shows that electoral democracy is possible without parties.
The challenge is to design an electoral system that makes this possible. The court cannot prescribe this. It is a function that belongs to parliament.
Barking up the wrong tree
In much of the debate about electoral reform, the way local government representatives are elected is touted as a solution. But it is no better. Despite having an element of a constituency approach, which many supporters of electoral reforms want for provincial and national polls, is also driven by a party system.
That it is not also up for reform creates lopsidedness. This must be corrected, or South Africa could make the same mistake it made during the negotiations to end apartheid in the early 1990s. The transition from the apartheid-era local government system was handled separately from the national and provincial spheres. This is why the country has different systems of government at the local, provincial and national levels. And often this spawns incoherence in the country’s system of governance.
The fundamental problem is the country’s proportional representation system. It is the reason coalition politics have become messy.
Local government has been unstable since after the August 2016 local government elections saw the governing ANC lose major cities, heralding the era of coalition governments across the country. The unstable coalitions have had dire consequences for governance and service delivery. The fear is that this will be repeated after the 2024 national elections.
Because of the loss of electoral support over the years for the governing African National Congress, the poll is expected to result in the first national coalition government since democracy in 1994. This could also happen in the provinces.
The proportional representation system
In a proportional representation system, the allocation of seats in the legislatures for all three spheres of government is based on the electoral performance of parties. A winning party needs more than 50% of the votes to constitute a government.
Local government uses a ward system along with proportional representation. The total number of seats is halved, to be filled based on the electoral performance of the parties and candidates who get the most votes in their community.
Compared to proportional representation, a ward system is a constituency electoral approach, based on the first-past-the-post principle. A candidate with the highest votes in a ward gets a seat in the municipal council as the community’s duly elected representative.
Many hail the mixed local government system as balancing party-list proportional representation with a constituency approach. They say it has lessons for the national and provincial spheres of government. But this is only partially accurate.
A ward system also allows candidates to contest elections as representatives of parties. This oddity does not end here. A vote for a ward candidate who represents a party adds to proportional voting of their party in allocating seats in the council. A ward system reinforces the party system. Its constituency disposition is a farce.
Why proportional representation
South Africa’s proportional representation came from noble intentions during the multiparty negotiation in the 1990s to end apartheid. It evolved as part of the political concessions to facilitate the transition “from racial authoritarianism to multiparty democracy” (p. 440-450). This included enabling even the smallest parties a presence in parliament.
It has long outlived its contextual relevance. Its negative extremes abound in local government. The proliferation of smaller parties muddies the operating system of the multiparty democracy.
This has thrown governance into turmoil, as shown in the metropolises with their internecine coalition politics. It is coming apart at the seams, to the detriment of service delivery.
South Africa’s democracy is at a tipping point, and state capacity has been weakening.
What needs to be done?
Government has the responsibility to design a better electoral system. The objective should be to return power from political elites to the people. The existing system has spawned contestation among parties about sharing the spoils of state power rather than using this for the public good.
Different electoral systems exist across the globe. There is no perfect system for South Africa to choose. Each electoral system is a function of its political context, and when this changes, it also ought to change.
The distribution of seats for independent candidates must be thrashed out to ensure equity relative to political parties. When their electoral performance gives them more than a seat, they should be allowed to co-opt like-minded people to occupy them.
The possibility for ward councillors to contest elections as representatives of parties should be disallowed. They should only stand as direct community representatives. An overarching requirement for all who want to contest elections should be allegiance to the public interest, not party or personal interests.
South African president Cyril Ramaphosa recently signed into law a change to the country’s electoral act to allow individuals to contest national and provincial elections independently of political parties. The change follows a June 2020 constitutional court judgment that the Electoral Act was unconstitutional because it didn’t allow independent candidates.
But in my view the change corrects one wrong by creating another, especially concerning the principle of proportionality.
For instance, it does not matter how many votes independent candidates get. Once they have reached the electoral threshold to secure a seat in the legislature, any extra votes would not count. For political parties, extra votes count towards securing another seat. (A trend that has emerged over the years has been that a party needs at least 40,000 to 45,000 votes to secure a seat in the national assembly.)
Thus various civil society formations have headed to court to challenge the inherent injustice in the changed law. The existing electoral system is, by design since 1994, inherently biased towards a party system.
Based on my work on electoral democracy in South Africa, and on the Electoral Commission of South Africa (chapter 4), I think the legislated changes and much of the discussion about independent candidates miss the point. What’s needed is to completely overhaul the electoral system, lest it continues to churn out minute parties, resulting in intractable coalition politics. This is already in evidence through governance impasses in the country’s metropolises.
The constitutional court’s decision shows that electoral democracy is possible without parties.
The challenge is to design an electoral system that makes this possible. The court cannot prescribe this. It is a function that belongs to parliament.
Barking up the wrong tree
In much of the debate about electoral reform, the way local government representatives are elected is touted as a solution. But it is no better. Despite having an element of a constituency approach, which many supporters of electoral reforms want for provincial and national polls, is also driven by a party system.
That it is not also up for reform creates lopsidedness. This must be corrected, or South Africa could make the same mistake it made during the negotiations to end apartheid in the early 1990s. The transition from the apartheid-era local government system was handled separately from the national and provincial spheres. This is why the country has different systems of government at the local, provincial and national levels. And often this spawns incoherence in the country’s system of governance.
The fundamental problem is the country’s proportional representation system. It is the reason coalition politics have become messy.
Local government has been unstable since after the August 2016 local government elections saw the governing ANC lose major cities, heralding the era of coalition governments across the country. The unstable coalitions have had dire consequences for governance and service delivery. The fear is that this will be repeated after the 2024 national elections.
Because of the loss of electoral support over the years for the governing African National Congress, the poll is expected to result in the first national coalition government since democracy in 1994. This could also happen in the provinces.
The proportional representation system
In a proportional representation system, the allocation of seats in the legislatures for all three spheres of government is based on the electoral performance of parties. A winning party needs more than 50% of the votes to constitute a government.
Local government uses a ward system along with proportional representation. The total number of seats is halved, to be filled based on the electoral performance of the parties and candidates who get the most votes in their community.
Compared to proportional representation, a ward system is a constituency electoral approach, based on the first-past-the-post principle. A candidate with the highest votes in a ward gets a seat in the municipal council as the community’s duly elected representative.
Many hail the mixed local government system as balancing party-list proportional representation with a constituency approach. They say it has lessons for the national and provincial spheres of government. But this is only partially accurate.
A ward system also allows candidates to contest elections as representatives of parties. This oddity does not end here. A vote for a ward candidate who represents a party adds to proportional voting of their party in allocating seats in the council. A ward system reinforces the party system. Its constituency disposition is a farce.
Why proportional representation
South Africa’s proportional representation came from noble intentions during the multiparty negotiation in the 1990s to end apartheid. It evolved as part of the political concessions to facilitate the transition “from racial authoritarianism to multiparty democracy” (p. 440-450). This included enabling even the smallest parties a presence in parliament.
It has long outlived its contextual relevance. Its negative extremes abound in local government. The proliferation of smaller parties muddies the operating system of the multiparty democracy.
This has thrown governance into turmoil, as shown in the metropolises with their internecine coalition politics. It is coming apart at the seams, to the detriment of service delivery.
South Africa’s democracy is at a tipping point, and state capacity has been weakening.
What needs to be done?
Government has the responsibility to design a better electoral system. The objective should be to return power from political elites to the people. The existing system has spawned contestation among parties about sharing the spoils of state power rather than using this for the public good.
Different electoral systems exist across the globe. There is no perfect system for South Africa to choose. Each electoral system is a function of its political context, and when this changes, it also ought to change.
The distribution of seats for independent candidates must be thrashed out to ensure equity relative to political parties. When their electoral performance gives them more than a seat, they should be allowed to co-opt like-minded people to occupy them.
The possibility for ward councillors to contest elections as representatives of parties should be disallowed. They should only stand as direct community representatives. An overarching requirement for all who want to contest elections should be allegiance to the public interest, not party or personal interests.
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