The Electoral Laws Amendment Bill is a hastily written disaster in the making. You can’t just add independents to a closed-list proportional representation system and expect it to work.

There’s only a month left until the extended deadline of 10 December 2022 for Parliament to pass the Electoral Laws Amendment Bill, and it is still a dog’s breakfast.

The amendment to the Electoral Act of 1998 (as amended by the Electoral Laws Amendment Act 34 of 2003) was required by a Constitutional Court ruling on 11 June 2020, in order to permit independent candidates to contest the provincial and national elections. In principle, the 2024 national and provincial elections should be conducted under the amended law.

However, the amendment’s inclusion of independents alongside party lists in a proportional representation system is ‘logically absurd’, according to a new paper published by the Institute of Race Relations (IRR), written by independent election analyst Michael Atkins.

Atkins argues that this will lead to ‘outcomes that are unfair either to independent candidates, or to voters’.

He proposes drastic intervention: avert the implementation of the amendment, muddle through the 2024 elections (which cannot be postponed by any Constitutional mechanism), and then sit down to engage in logically consistent and meaningful electoral reform.

Breathtakingly absurd

The amendment is premised on ‘the retention of the [existing] electoral system’, where ‘independent candidates should be included’.

‘This is a breathtakingly absurd proposition that has attracted little or no comment. Having individuals on a proportional representation ballot is a contradiction in terms precisely because an individual is limited to occupying a single seat, irrespective of the number of votes obtained. There is no polite way to express this.’

The national and provincial elections in South Africa are conducted under a closed-list proportional representation (PR) system. That is, parties establish lists of candidates that are closed in the sense that voters vote only for parties, and aren’t allowed to choose from the lists.

Each party then gets allocated a number of seats depending on the proportion of the valid votes they receive, which they populate with list members ranked in order of their own preference.

The total number of votes needed to secure a parliamentary seat is calculated by dividing the total number of valid votes cast in an election by the number of seats to be filled.

(The actual formula is quota = ( valid votes / (seats + 1) ) + 1. This is called the ‘Droop quota formula’, and gives a slight advantage to larger parties compared with a simple votes/seats division, known as the Hare quota, which slightly benefits smaller parties.)

There are 400 seats in Parliament. In 2019, 17 437 379 votes were cast. Putting that into our formula yields 43 485 votes per seat.

Regional seats

It’s actually a little more complicated, since under current law, half the seats in Parliament are reserved for regional candidates, that is, candidates on provincial party lists. The number of seats allocated to each region/province is determined by the Independent Electoral Commission (IEC) based on provincial population size.

So there’s a quota formula for allocating the regional seats, identical to the one described above, but based on the number of regional seats and the number of valid votes cast in the relevant province.

Then the remaining national seats get divvied up by using the quota formula with a seat count of 200 instead of 400. If any of these calculations leave open seats, those are contested by the surplus votes the parties receive over and above those needed to occupy the filled seats, using the largest remainder method. Provincial legislatures are populated in much the same way.

Into this fairly simple PR system, the new amendment simply wedges independent candidates into the regional seats.

Unclaimed seats

This poses some very obvious problems.

If someone popular, say Siya Kolisi, or Steve Hofmeyr, or Cassper Nyovest, decides to contest the elections as an independent candidate, they might receive considerably more than the 45 000-or-so quota of votes they need to win a seat.

(We’ll leave a discussion of the desirability of electing celebrities into Parliament for another occasion. South Africa wouldn’t be the first country to do so.)

All those votes will not only be wasted (which is already a risk posed by small parties that fail to win any seats at all), but they will leave open seats. If one of our celebs gets 250 000 votes, for example, they’ll be entitled to five seats, which they cannot fill, because they’re not a political party with a party list, so four seats will go unclaimed.

In principle, all independent candidates who do get elected, will get elected with some surplus votes, which combined could generate many empty seats.

Those open seats contribute to the number of seats available to the parties. Therefore, they will benefit each of the parties, in proportion to that party’s popularity. Assuming a similar vote distribution as in 2019, they’ll benefit the ANC most, benefit the DA significantly less, and benefit the smaller parties least of all. This distribution of unearned seats, skewed towards the bigger parties, makes a mockery of proportional representation.

(This description is perhaps a little over-simplified. For a detailed analysis, see the IRR report.)

But there’s more. The way the calculations are performed, the quota required for independent candidates to win a seat in the National Assembly will depend on which province they’re contesting, but will always be substantially more than the quota required for national political party candidates. They range, based on 2019 election data, from about 68 000 in the Northern Cape to about 92 000 in Gauteng, well above the 43 000-odd required by party candidates.

Disenfranchisement

It is also problematic that independents are permitted to contest more than one regional election for the National Assembly, as well as a single election for a Provincial Legislature. They need to win in only one regional election to secure their National Assembly seat. If they also win their provincial election, they cannot take up both seats they won. Either way, all the votes they obtained in regions other than the one that secured their seat will be wasted, effectively disenfranchising these voters. Those wasted votes will effectively go to the parties, in proportion to their size, benefiting the largest parties most.

Another problem is that unlike political parties, which need only 1 000 signatures to be able to register for the elections, independent candidates will be required to collect 20% of the previous election’s quota, or more than 8 000 signatures. This puts them at an obvious disadvantage against party candidates.

And still there’s more. Section 46 of the Constitution requires that the electoral system must result, ‘in general, in proportional representation’.

It is unclear what the threshold for ‘in general’ is, but under the new amendment, up to 200 independent candidates could theoretically obtain seats in parliament, displacing all of the regional seats.

The result would be that only 50% of Parliament is elected by proportional representation, and that is clearly not ‘in general, proportional representation’. The more independent candidates get elected, the less proportional Parliament would be.

It could therefore be argued that the electoral system created by the amendment, besides leading to the serious unintended consequence of skewing the number of seats won towards the largest party, is also ipso facto unconstitutional.

Comprehensive reform

It is certainly impossible to consider this ‘the retention of the [existing] electoral system’, where ‘independent candidates should be included’. It breaks the existing electoral system.

Permitting the participation of independent candidates was always going to require comprehensive electoral system reform.

The IRR report sums up previous discussions about electoral reform: ‘It was always held that a more nuanced and more directly representative system should be introduced once our democratic processes were safely entrenched. The Electoral Task Team headed by Frederik van Zyl Slabbert recommended in 2003 that a constituency system be implemented, with 69 multi-member constituencies electing 300 members of the National Assembly. No further action was taken with respect to this report. At the ANC’s 2007 National Conference, a Resolution was passed that we should consider moving to a constituency system (balanced as always by proportional representation). In 2017, the High-Level Panel on Key Legislation, headed by Kgalema Motlanthe, proposed among other things that we should move to an electoral system based on a “proportional representation and constituency system for national elections”.’

These systems could broadly be described as mixed member proportional representation systems, and they would eliminate the problem of non-proportionality, while allowing independent candidates to stand as constituency members.

In fact, some form of hybrid system with either single-member or multi-member constituencies is the only way in which independent candidates can be accommodated within a proportional representation framework. The report duly recommends this.

Withering criticism

The IRR report points out that the public participation process was largely a farce. Although civil society was unusually united in its condemnation of the amendment, the public was never given an opportunity to choose between more than one possible model that satisfied the ConCourt ruling, and therefore were reduced to nitpicking the details, rather than questioning the merits of the sole system that was on offer.

This is obviously deeply problematic, if that system is beyond saving, as indeed it is.

In the National Assembly, the amendment bill also faced withering criticism, stubbornly defended by its proponents.

Under panicked deadline pressure, it will likely be steamrollered through despite its fundamental flaws. The National Council of Provinces will prove little obstacle, because it is dominated by the ANC.

(As an aside, this is an important point to consider when contemplating an election result in which the ANC obtains fewer than 50% of the seats in Parliament: it will still control the NCOP, because of the way provincial representatives are allocated, and that most provinces will remain ANC-controlled.)

By opting for what appeared to be the simplest (and frankly, laziest) change to the electoral system, the drafters of the amendment have produced an inconsistent and unfair system that disadvantages independent candidates and disenfranchises voters.

Constitutional crisis

The IRR report concludes that this creates a full-blown constitutional crisis: ‘We are already in a constitutional crisis. It is now not possible to hold a constitutionally compliant election in 2024. In fact, this was true before the end of 2021. The Electoral Act is unconstitutional, and the Electoral Amendment Bill has no prospect of being constitutional. The only valid solution, that of implementing a hybrid constituency system [the mixed system referred to above], is not possible before the 2024 election.’

It finds that there are no easy solutions to this problem. If the Bill is signed into law, there will be challenges, and likely changes, which will severely compromise the ability of the IEC to conduct the elections at all.

If the 2024 elections proceed under the new amendment, there is a very high chance that it will be overturned as having been neither constitutional nor fair.

If they go ahead under the old law, at least the courts, asked to declare the election unconstitutional, might be able to point to the practical impossibility of having given effect to the 2020 ConCourt ruling before the 2024 elections.

Another extension

My sense is that the only way to proceed is for the ConCourt to grant another extension, this time by three or four years, for the Department of Home Affairs to come up with, and Parliament to pass, more coherent legislation. This would permit the 2024 elections to proceed under the old system, and a new, properly considered system to be implemented thereafter.

This time around, it would be useful to present the public with two or more options that permit individual candidates while preserving proportional representation, as recommended in the IRR report. This would lead to constructive public debate, which will tease out all the flaws and potential unintended side-effects of each system.

As the report states: ‘We need to begin again. But this time, we need to do it right. The Minister [of Home Affairs] treated the inclusion of independent candidates as a technical, or administrative change, but this is not the case. We need the process to be more broad based and informed by all that we have learned up to now.’

 

Reform the electoral system; don’t break it! – Daily Friend