One needn’t take an especially deep interest in American politics to be familiar with (or at least aware of) the idea of a ‘stolen election’. This claim has been deployed most vocally by former President Trump and his partisans, but variants on this theme have arisen from other quarters too.
Whether these claims are cynically made or sincerely held, they are corrosive to any democracy. Any election outcome is likely to produce disappointments, but confidence in the prevailing system at least allows all parties to feel that they have succeeded or failed according to objective and pre-understood rules. It was, as we in South Africa like to say, ‘free and fair’.
Take away this confidence and elections become ‘politics by other means.’ Elections are degraded to theatrical contests, whose probity is measured by each contestant in terms of their own success.
Where there are clear and identifiable deficiencies in the electoral process – where the compromises on the freedom or fairness are there built into the system and obvious for all to see – the dangers for a democracy can be well-nigh existential.
This is a caution for South Africa as it approaches some highly controversial changes to its own electoral system. The Institute of Race Relations has published a study of the Electoral Amendment Bill, by renowned analyst Michael Atkins.
South Africa’s electoral system and processes have never been the subject of complaints as to its functionality or fairness, at least insofar as apportioning representation goes. The Constitution requires that the system should produce, ‘in general proportional representation’. The existing system offers fairly straight proportional representation with 400 seats in the National Assembly, for better or worse even relatively marginal parties – whether their support is geographically concentrated or disbursed – have a decent chance of securing a place for themselves. Where people see their political interest expressed through political parties, the system does a creditable job.
Its prime weakness is that in providing exclusively for the representation of parties, it focusses all incentives upwards to party mandarins, rather than to the voters; hence the demand for reforms that to reverse this. Since the 1990s, the remedy for this has been presumed to be a constituency-based system. In 2020, a ruling by the Constitutional Court found that ‘that the Electoral Act 73 of 1998 is unconstitutional to the extent that it requires that adult citizens may be elected to the National Assembly and Provincial Legislatures only through their membership of political parties.’
And so, the emphasis has been on effectively shoehorning independent candidates into the existing system. Their names can be included on the lists that each province prepares for election to the National Assembly; they may also offer themselves for election on the list for each provincial legislature.
However, independent candidates will be eligible only for the single seats they hope to occupy, votes cast for them in excess of the quota required to enter the legislature will be discarded. So, a particularly charismatic or personally popular figure – someone like Mmusi Maimane might have seen himself in this role – might draw support several orders of magnitude higher than what the individual candidate can absorb.
These ‘excess’ seats would be allocated among parties, in proportion to the parties’ respective standings. This is likely to have the practical effect of working to the advantage of larger parties – the ANC most of all, and the DA to a lesser extent – and to the disadvantage of smaller parties.
In a very real sense, voters for independent candidates would be providing a vote subsidy to the parties that they are trying to avoid. There is something that is perverse about this, producing something that may not be particularly proportional in outcome, nor fair to the voters’ intentions.
Moreover, the formula for calculating representation in the National Assembly is designed so as to require independents to obtain a significantly larger share of the votes cast than any of their party-affiliated peers. This is because parties draw their representation in the body from a formula that assigns seats on the basis of provincial support and overall proportionality across the country. Since independent candidates will be elected from the former group – while parties benefit from both – they will need significantly to outperform the average of party candidates within their provinces. Based on turnout in 2019, a party-aligned candidate could make it to the National Assembly with around 44 000 votes; an independent contesting in the Northern Cape would need 68 000, and a candidate in Gauteng 92 000.
There is a great deal more, including onerous signature requirements to be included on a ballot, the anomalous allowance for an independent to contest (but not take up) seats in more than one provincial legislature, and provisions for filling vacancies.
All in all, the Bill does very little to address the real concerns of our existing electoral system. It provides a theoretical ‘in’ for independents, but with the odds stacked against them, and the structural dominance of parties left essentially intact. A durable solution would be found in the mixed member constituency system that has been punted before – but steadfastly rejected.
Accordingly, there is a real possibility that an election held under the Bill would generate much dissatisfaction and possibly even a constitutional challenge. Lest it be misunderstood: with South Africa’s current electoral system being constitutionally non-compliant, the country is already in a constitutional crisis.
Since no significant changes to the electoral system are implementable at this time the best available course of action would be for the Constitutional Court to allow an extension, so that the 2024 election can be held under the current system, and a proper process of electoral reform undertaken prior to 2029.
As things exist at present, South Africa is in a perilous position. The Half-hearted tinkering with the electoral system offers no solution. And given the stakes of the 2024 election, we might well also borrow from the Americans the idea that ‘democracy is on the ballot.’