Why the Government is proposing Electoral Reform now and why the proposal is inadequate

Executive summary

The Electoral Amendment Bill (“the Bill”) is open for public comment, following a Constitutional Court judgment requiring elections for the National Assembly and provincial legislatures to make provision for independent candidates. This brief has been written to accompany the Helen Suzman Foundation’s submission to the National Assembly’s Home Affairs Portfolio Committee on Bill. The submission can be found here.

The existing system provides that parties obtain seats in direct proportion to the votes that they receive. For example, if a party receives 1 000 000 votes out of a total vote of 20 000 000, it receives 5% of the 400 seats in the National Assembly, i.e. 20 seats. No provision is made for independent candidates. In addition, the current system provides no link between voters and elected members, as all members are simply nominated in accordance with their place on their party’s national list. The absence of such a link means that voters do not have a channel to communicate their suggestions or concerns to members of the National Assembly. In addition, it results in a serious lack of accountability of members of the National Assembly to voters whom they, in theory, represent.

The Bill now makes provision for independent candidates. Such a candidate will be elected if he/she obtains more votes than required in terms of a quota, which is calculated by dividing the total number of votes in a region, by the number of seats allocated to that region. If a total of 2 000 000 votes are cast for 50 seats in a specific region, an independent candidate will therefore require more than 40 000 votes to be elected (the result of dividing 2 000 000 by 50). Aside from the possibility that independent members of the National Assembly may have regional support, the Bill does not provide any improvement regarding the absence of a link between voters and nationally elected representatives.

The electoral system which would enable both local representation, and at the same time ensure that it does not conflict with any party’s proportionate support on a national level, is a mixed-member proportional electoral system.

The mixed-member proportional system may seem complicated at first sight, but is actually quite simple. It provides for each voter to have two votes: one for an individual local representative and a second for a party on a national basis. A number of seats in the National Assembly would be taken up by locally elected members, whereas the remaining seats would be allocated to ensure that the total number of seats of any party is not out of proportion with its support on a national level.

Let us assume that there are 200 local seats and 200 party list seats, making up a total of 400 seats:

• If on a local level, a party obtains 40 out of 200 seats (i.e. 20%), but obtains 25% on a national basis by way of the second vote (representing a larger percentage support than that on local level), it would be allocated 60 party list seats, to ensure that its aggregate representation is in line with its proportional support on a national level;

• If on the other hand, it obtains the same number of 40 seats on a local (first vote) level, but its national (second vote) proportion of total votes cast would only entitle it to 10% on a national basis, then no additional seats would be allocated to that party to ensure that the overall proportional representation in the National Assembly is in accordance with the results of the second vote.

The mixed-member proportional system operates successfully in New Zealand and Germany. However, the South African Government continues to ignore this alternative, in spite of recommendations by three high-level reports over the past 20 years.

The brief

Introduction

The Minister of Home Affairs introduced the Electoral Amendment Bill [B1-2022] to the National Assembly on 10 January 2022¹. It proposes to amend the system for election of members of the National Assembly and provincial legislatures, currently regulated by the Electoral Act (73 of 1998) (Electoral Act).² Why has the Minister done this? In short, because he had to. The Constitutional Court handed down a judgment³ on 11 June 2020 in which it held that the Electoral Act was unconstitutional, because it did not provide an opportunity for independent candidates to contest national and provincial elections. The Constitutional Court gave Parliament 24 months to remedy this defect and that deadline is fast approaching.

In order to see what is at stake, this brief: outlines the existing electoral system, the fault the Constitutional Court found with it, how the government proposes to rectify the situation and why we think that the government’s proposal is inadequate – both for independent candidates and as an attempt at sensible electoral reform. In order to avoid complication, all of these points will be made by using election to the National Assembly, as opposed to Provincial Legislatures, as its primary example.

The existing system

In national elections, voters express their preference on their ballot paper by choosing one from a list of parties contesting the election. The Electoral Act allows only political parties to contest an election. Each political party compiles an ordered list of candidates for each province (termed regions to avoid confusion with election to provincial legislatures) plus an ordered national list.⁴ Half of the 400 members of the National Assembly are elected from regional party lists and the other half from national party lists.

The 200 regional seats are divided between provinces by the Independent Electoral Commission (IEC) based on the number of registered voters in each region. In the 2019 election Gauteng had 48 seats, KwaZulu-Natal 41, Eastern Cape 25, Western Cape 23, Limpopo 19, Mpumalanga 15, North West 13, Free State 11 and Northern Cape 6. Votes are counted up in each region. A quota is then calculated for each region according to following the formula:

Quota = Total valid votes + 1
               Seats +1

Party votes are divided by this quota, and the result is a whole number plus a fraction. In the first round parties are allocated the whole numbers of seats. This leaves a few seats unfilled, and these are allocated in the second round to the parties whose fractions are the highest. If a party is allocated, say, seven seats in a region, then the first seven candidates on its regional list are elected to the National Assembly.

The whole process is repeated at the national level, where the votes cast abroad are added in to the votes cast in all regions. The same method is used to calculate the total number of seats in the National Assembly that a party is entitled to. The national party list is used as a compensatory list (ie. in order to ensure that the total number of seats for any party is equivalent to its proportionate share of all votes). For instance, if a party wins 42 seats across all regions and is entitled to 80 seats in total, then the first 38 candidates on its national list will be elected to the National Assembly.

The constitutional court judgment

It was the limitation that members of the National Assembly must be elected through membership of political parties that the Constitutional Court found unconstitutional. It found that individuals had the right to contest elections without having to be members of parties. These individuals are termed ‘independents’.

How the bill accommodates independents

The Bill gives an independent candidate the right to contest a national election in the region (i.e. province) in which the candidate is ordinarily resident. Up to now, the national ballot has been uniform across regions, consisting of a list of all the parties contesting the election. But if the Bill becomes law, each region’s national ballot will consist of the party lists plus the list of independents contesting in that region.

Now one would have regional sets of independents, regional party lists and a national party list, and the process of seat allocation becomes more complex. Two additional methods of allocation of seats are to be introduced, both of which allocate seats to independents only.⁵ Once these seats are allocated to them, all votes for independents and all seats won by them are discarded from further consideration. Then the remaining seats are allocated to parties and filled by the method currently used. Suppose, for instance, that a total of 20 000 000 votes are cast, that 10 independents are elected in the first two rounds and that all independents, whether elected or not, gain 1 000 000 votes. Then candidates on regional and national party lists would be elected to 390 seats on the basis of 19 000 000 votes. The Appendix sets out the details of how the three rounds would work.

Why the bill is an inadequate accommodation of independents

Quite apart from failing to introduce meaningful electoral reform, the Bill woefully sells short the potential held by independent candidates to make the National Assembly more accountable to voters. Since independents can only secure votes from the region in which they are resident, they are not able to benefit from support that they may have nationally. Voters are thus unable to support their preferred candidate, if they are resident in another province. This prevents the full extent of the support that exists for independent candidates from making itself felt at the ballot box.

Why the bill is inadequate

We think the Bill is inadequate because it continues to refuse to introduce a mixed-member-proportional (MMP) system, despite recommendations for such a system by a series of high-level task teams and advisory committees. These findings are to be found in the majority recommendation of the Electoral Task Team in 2003, the Report of the High-Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change in 2017 and the majority report of the Ministerial Advisory Committee on Electoral Reform in 2021.

The unanswered question is: Why have these clear recommendations been disregarded?

How an mmp system works

At first sight, the MMP system may appear confusing, but its principles are not complicated. It works as follows:

1. The country is divided up into a number of single member or multiple member constituencies.

2. Voters are asked to make two choices on the national ballot paper, rather than just one. These are:

   1. Which individual or individuals do you want as a representative or representatives of the constituency in the National Assembly? This deals with representation on a local level.

   2. Which party (or independent) do you support to determine the distribution of party (and independent) seats in the National Assembly? This deals with representation on a national level.

3. It is the B votes which determine the proportional outcome required by Section 46 of the Constitution. This second vote is therefore also used as a compensatory mechanism, in order to resolve the problem of any party receiving fewer seats through local constituency voting (as in A), than it receives on a national level (through B). The National Assembly would therefore always reflect the proportionate result of the national votes, through B.

4. Candidates gaining the most A votes are elected as constituency MPs. The Electoral Task Team recommended that there should be 300 constituency MPs, while the Ministerial Advisory Committee recommended 200. In either case, at least half of all MPs would be constituency MPs.

5. There would be party candidates and independents in each constituency for the A vote. There would, however, continue to be national party lists, possibly augmented by a list of independents for the B votes. As at present, the national party lists would be used in a compensatory manner (as explained above). If a party is entitled to 80 votes in the National Assembly on the basis of B votes, and it obtains 42 constituency seats on the basis of A votes, then the first 38 candidates on the national party list would also be elected to the National Assembly.⁶

6. In this way, one gets the best of both systems. At least half of MPs would be rooted in defined geographical constituencies and dependent on constituency support for re-election, while the composition of the National Assembly as a whole would be proportional.

7. Voters would have more choices. They could vote for a party candidate⁷ in vote A and for the same party, or another party, in vote B. But they would not have to do so. They could vote for an independent in vote A and for a party in vote B. Or for an independent in vote A and the same or another independent in vote B. Or for a party candidate in vote A and an independent in vote B.⁸

Conclusion

What’s not to like about an MMP system? It accommodates parties and independents. It combines accountability and proportionality. It allows voters greater choice and addresses the problem that has become evident in South Africa – a large number of voters feel that they have no channel to bring issues to the attention of Parliament, as they are faced with representatives drawn from national party lists who mostly have no connection whatever with local interests and concerns. Being able to raise issues with constituency representatives would also increase the accountability of members of Parliament to voters. In the current system, this link has been broken.

Could it be that some worry about the prospects of MPs rooted in constituencies and dependent on constituency support for re-election? Are political parties anxious about losing centralised control of the national political process and what happens in Parliament? But democracy can only work where there are many competing centres of power and influence diffused across society. Our own experience with state capture attests to this. Did the Executive put a stop to state capture? By no means. Members of the Executive participated in it. Did Parliament? Not for a very long time, and then only when the uproar about it had become too extensive to ignore. It was the press which unearthed information about state capture, followed by a horrified mobilization by civil society and action by a former Public Protector who, unlike the current one, did her job conscientiously and competently. The corruption has been ruinous, and it is not over yet⁹.

We have cited evidence in our submission that popular support for our constitutional democracy is at its lowest ebb since 1994. Nearly half of the respondents in a reputable survey in 2021 stated that they would be ‘very willing’ in answer to the question:

If a non-elected government or leader could impose law and order, and deliver houses and jobs, how willing or unwilling would you be to give up regular elections and live under such a government?

Of course, if we gave up regular elections and lived under a non-elected government, we would not get law, order, houses or jobs. We would simply get more intense government predation.

In the same survey, only 27% of respondents said they trusted Parliament a lot or somewhat. The remainder had different views. Under these circumstances, it is absurd for Parliament not to insist on an MMP electoral system. If Parliament fails to do that, it can hardly be surprised if it also fails to make inroads to the mistrust the majority of the adult population feels towards it. 

Charles Simkins
Head of Research
charles@hsf.org.za

Appendix – The three round system of allocating seats in the National Assembly.

Quota 1 is determined by the formula:

Quota 1 = Total number of votes cast in the region,
                       Total number of seats in the region

disregarding the fraction. Any independent who gets more than Quota 1 is elected.

Quota 2 is determined by the formula:

Quota 2 = Total number of votes cast – votes cast for independents elected in Round 1,
                             Total number of seats – seats won in Round 1

disregarding the fraction. Any independent not elected in Round 1 who gets more than Quota 2 is elected.

Quota 3 is determined by the formula:

Quota 3 = Total number of votes cast – all votes cast for independents +1
                      Total number of seats – seats won in Rounds 1 and 2 +1

Only political parties are eligible for seats and only votes for parties are taken into account. The allocation of available seats for parties then takes place in exactly the same way as described in paragraph 5.

The allocation of seats at the national level also becomes more complicated. All independent candidates are elected, leaving the total number of seats minus the seats allocated to independent available for allocation to parties. So the formula for the national quota becomes:

National quota = Total number of votes cast nationally – all votes cast for independents + 1
                                          Total number of seats – seats won by independents + 1

Allocations to parties then proceeds in the same way as it does at present.

1 The text of the Bill can be found at https://static.pmg.org.za/B1-2022_Electoral.pdf