Introductory background to the constitutional issues
One of the central tenets of a multi-party democratic system is that there should be freedom of association to form political parties and that all parties should have an equal and fair chance to convince voters of their policy in order to best represent them in parliament.
Section 1(d) of the Constitution sets the parameters for the political system. It guarantees ‘universal adult suffrage, a national common voters roll, regular elections, and a multi-party system of democratic government' to ensure ‘accountability, responsiveness and openness'.
This is a mouthful in just a few words but it underpins a very complex political system for a specific kind of democracy - that of a republican constitutional state. At first glance, it seems as if this provision merely precludes a one-party state, but there is much more flesh to this provision that meets the eye.
A multi-party system also implies that voters must have a choice between all the parties participating in elections to have a clear perspective of the policies they advocate in order to make up their mind which party they want to give a mandate to rule. ‘Multi-party' therefore signifies that each party must participate in elections in its own capacity. Political parties may therefore not form a conglomerate of a number of parties to fight the elections together on one ticket. Although such a practice might have enhanced the chances of the African Christian Democratic Party, the Christian Democratic Alliance and the United Christian Democratic Party to get more seats in Parliament, this is not permitted.
Furthermore, just like voters cannot vote for two parties on a ballot, no candidate may represent two parties simultaneously. This is one of the basics tenets of citizenship rights and the tenor of section 3(2)(a) of the Constitution. It states that all citizens are ‘equally entitled to the rights, privileges and benefits of citizenship'.
During the first 15 years of the new constitutional system the tripartite alliance participated en block in elections on a single election ticket. The trick which they used is that the SACP did not officially register for and also did not contest elections. They argued that many members of the tripartite alliance belonged to all three liberation movements, and therefore they are entitled to this practice because they have the same political goals.
However, the context of extra-parliamentary politics during the apartheid era is different from the constitutionally mandated paradigm for parliamentary politics in terms of section 1(d) of the Constitution. The latter provision is one of the central cornerstones of the constitutional state which have been listed in section 1 of the Constitution. It is therefore the ultimate norm for constitutionality in regard to the political process because the constitution reigns supreme.
The question is therefore whether the political practice of multiple-political-membership could be reconciled with clear constitutional provisions underpinning the equality of political parties and equal opportunities at elections. This is the basis for the constitutional legitimacy of the mandate voters give to candidates who are elected to parliament.
If procedures are therefore followed during any of the phases the electoral process which are not constitutionally tenable, this has repercussions for the power relations in parliament and affects everything from who can actually rule to the relative strength of political parties in the various bodies of parliament.
Fair electoral procedures and practices
Before the focus therefore shifts towards the implications of dual-political-membership for parliamentary politics and constitutionalism, it is sensible to break up the electoral process in its different phases. That makes an analysis easier and more transparent. In terms of the Electoral Act 73 of 1998 the following phases can be distinguished:
· One: Proclamation and preparation for elections (ch.3, part 1of the Act)
· Two: Voter's roll (ch.2 and ch.3, part 2 of the Act)
· Three: Requirements for parties to contest elections (ch.3, part 3 of the Act)
· Four: Voting (ch.4, part 1 of the Act)
· Five: Counting of votes at the voting stations (ch.4, parts 2-4 of the Act)
· Six: Determination and declaration of final results of elections (ch.5 of the Act)
Although it is therefore almost five to twelve before the next elections, it is not too late to scrutinise the practice of dual-membership, because the electoral process is only in phase three at this stage. The IEC can still correct procedures that went awry at previous stages of the electoral process in order to safeguard the norms of constitutionality for democratic participation of the rest of the electoral process.
A similar case came up in Germany many years ago. In the wake of the new democratic system in Germany, the two conservative Christian democrat parties formed a loose coalition very similar to that of the tripartite alliance of the ANC, the SACP and COSATU directly before the 1994 elections. The Christian Democrat Party (CDU) and the Christian Social Union (CSU) tried to run on one electoral ticket and to combine their candidates on one list.
They were taken to court and the German Constitutional Court ruled that this was an unconstitutional practice. The Court held that each party had to participate in its own right in elections with its own list of candidates otherwise equal opportunities and the equality of political parties could not be guaranteed. Conversely, the Court allowed them to form a parliamentary fraction on condition that they do not simultaneously fight elections in the same federal states. The Court further ruled that political parties can only qualify for parliamentary fraction status if their policies do not diverge. (A parliamentary fraction should not be confused with a coalition.) The Constitutional Court thus permitted the CDU and CSU to have a parliamentary fraction, provided the CSU which has its stronghold in Bavaria fights national elections only in Bavaria, and that the CDU fights elections in the rest of the country, excluding Bavaria. The reason for this ruling is to ensure that each party gets its fair share of political representation. A joint list is therefore not permitted because it might lead to under- or overrepresentation of one of the political parties and would not reflect the true mandate for a specific party from the voters. (The law on equal opportunities for political parties in Germany is very extensive. Likewise, the law on the right to built political fractions in parliament alone is the subject for thick handbooks on this aspect of free association.)
South Africa has a purely proportional electoral system and not a combined proportional- constituency system like Germany. This, however, does not detract from the right of political parties to be treated equally and to have equal opportunities in elections.
Section 19 of the Bill of Rights regulates ‘political rights' in the following terms:
(1) Every citizen is free to make political choices, which includes the right
a) to form a political party;
b) to participate in the activities of, or recruit members for, a political party; and
c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.
(3) Every adult citizen has the right
a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and
b) to stand for public office and, if elected, to hold office.
This provision makes clear that citizens who qualify as voters not only have the right to form political parties, but as voters they should have a clear choice between all the political parties that participate in elections.
In this spirit section 26 of the Electoral Act of 1998 stipulates that a party ‘may contest an election only if that party' meets the following conditions: (a) the party must be a registered political party, and (b) it must have submitted a list of candidates in terms of section 27 of the Act to fight the election. A party that wants to fight an election must therefore comply with a number of formal requirements.
The Independent Electoral Commission (IEC) has been statutorily created as a permanent body to supervise elections, promote free and fair elections and to safeguard democracy in along this path. It is a publicly funded body which is accountable to parliament, but independent of government. The IEC is responsible to see to it that there are free and fair elections at all levels of government - national, provincial and local. A political party that registered for elections and contests elections receives a share of seats in Parliament in direct proportion to the number of votes cast for it in the election. Voters don't vote for individuals, but for a political party, which decides on members to fill the seats it has won.
To summarise, even if a party is registered as a political party, it cannot be represented in parliament unless it actually participates in the elections in its own capacity. Only if it wins enough votes to secure representation in parliament, the party's candidates can become MPs. Many parties do not get enough votes to pass the hurdle to qualify for representation in parliament. Currently 117 parties are registered as political parties at a national level. In the 2004 elections only 21 political parties won seats in the National Assembly. It would therefore be a flagrant discrimination against any of the parties that does not make it into parliament if another party that did not even participate in elections would be able to be represented in parliament due to dual membership of its candidates in a another political party. It also discriminates against other parties who make it into parliament, because it could affect the numbers of votes that they would have been able to draw on them otherwise.
On the electoral breakdown of the 2004 elections the ANC officially won 69,69% of the votes. Although the SACP did not participate in the elections, they nevertheless got into parliament because the ANC allocated a number of its seats to SACP members with double membership. Along this route, there are currently 80 SACP MPs in parliament with dual membership. This makes up 20% of all the seats in parliament. They are therefore a powerful block which can flout substantial political power. In fact, they have far more power than the biggest opposition party.
Strictly speaking, however, these MPs were not entitled to represent the SACP in the indirect manner it turned out to be in practice. Although the SACP is a registered a political party, it did not register for elections. The SACP therefore did not meet any of the statutory conditions for political representation during the last elections: Firstly, it failed to put up a list for its candidates (section 15). Secondly, it failed to meet the prerequisite to register for elections (section 26(a)). Thirdly, it also did not submit a list of its candidates for parliament to the IEC as required in terms of section 27 of the Act (section 26(b)). Fourthly, nobody voted for them at the voting stations (ch. 4, part 1). Fifthly, no votes were counted for them because nobody voted for them (ch. 4, parts 2-3 of the Act). Sixthly, nobody could object to the final result of the election on this procedural irregularity, because they did not officially took part in the elections (ch 4, part 4). Finally, they were not announced as a party that won any seats in parliament (ch 4. part 5).
In other words, they did not meet any of the formal requirements set by the Electoral Act to be represented in parliament on the basis of direct voter support for their policies. Yet, they are a power bock with 20% of the members in parliament.
The Electoral Act does not provide for indirect representation. No statutory procedures have been prescribed for such a way to get into parliament, and even if the Electoral Act should have provided for that, it would have been unconstitutional. It is contrary to the prerequisite of direct accountability to the electorate in terms of section 1(d) read with section 42(3) of the Constitution.
Since the proper procedures to attain political representation in parliament were not followed, this means that the rule of law has also been undermined. The IEC cannot make regulations which override the Constitution or the Electoral Act. Section 1(c) read with section 2 of the Constitution makes clear that the Constitution is supreme and that the rule of law binds all organs of state. All conduct inconsistent with it, is invalid.
Section 8(1) of the Constitution additionally safeguards political rights guaranteed by section 19 of the bill of rights. This provision states that the bill of rights ‘binds the legislature, the executive, the judiciary, and all organs of state'. This includes the IEC. To recap, the IEC cannot have one set of rules for the ruling alliance and another for all the other parties. This would infringe upon the fundamental rights for it affects the right of political parties to fair elections, it restricts their bargaining power to form ruling coalitions, and it impacts on the power relations within a ruling coalition and diverse parliamentary bodies.
Multiple-membership in extra-parliamentary alliances
Currently the tripartite alliance is an extra-parliamentary alliance because the SACP did not participate in elections. However, even if the SACP should have participated in elections, the ANC and the SACP would probably not qualify as parliamentary fraction anymore, because their economic and labour policies diverge to such an extent that it would hardly be possible. The political situation is thus very different now from the first years in the post-1993 era after the interim Constitution was adopted. The Polokwane conference was a definite watershed within the extra-parliamentary power block of the tripartite alliance.
The fact that the ANC and SACP might not qualify for parliamentary fraction status does not stand in their way to form a coalition after elections, though. The purpose of obligatory participation in elections of each political party is to determine their relative strength in the cabinet if they should be in a position to form a ruling coalition.
The relative strength of political parties affects the number of seats in parliament but also in all parliamentary bodies which depend upon proportional representation. The relative strength of a political party, again, depends directly on its mandate from the voters. This has implications for the non-participation of the SACP in elections.
According to an IPSOS MARKINOR survey conducted in April 2007, only 8% of South Africans (and 5% of ANC supporters) would vote for a breakaway SACP/COSATU party if it were to stand independently in a national election. On the basis of this survey, the SACP reached the conclusion that ‘although elections are important, there is not a pre-determined singular route for the working class (i.e. the SACP and COSATU) to hegemonise state power.'
This statement reflects disrespect for parliamentary politics and undermines the political parameters set by section 1(d) of the Constitution for the political process as such. It implies a special status for the working class like in socialist or communist regimes. This is not in compliance with the constitutional norms that South Africa is a classless republican constitutional state. Within the latter framework the SACP has to participate in the political process like any other political party.
According to Dave Steward , executive director of the F W De Klerk Foundation's Centre for Constitutional Rights, the SACP's prospects for parliamentary representation will, indeed, be far better if it remains in the Alliance, rather than having to fight elections on its own (see here):
"There are already 80 SACP MPs in Parliament (compared with the DA's 46).* They comprise a little less than a third of the ANC's parliamentary caucus - and 20% of all MPs (not bad for party with only 51 000 members!). Prospects are good for the coming election as well. The new ANC leadership is deeply indebted to the SACP and COSATU for their support at Polokwane and might give sympathetic consideration to the Young Communists League's call for the SACP, COSATU and the ANC each to be allocated one third of the places on the ANC's electoral list."
Such a practice would infringe upon the rights of individual candidates of the ANC because the common list is to their disadvantage. Some of them might make it into parliament on a single list for the ANC, and many of them will now have to make place for members of the SACP. This clearly violates the political rights of ANC candidates in terms of section 19(3)(b) of the bill of rights. It also does not uphold the principle of proportional representation, because in terms of the arrangement the SACP would be overrepresented.
For its part, the SACP is not willing to participate on its own in elections although it has been registered as a separate political party. The reason is clear: it has the advantage of overrepresentation to the detriment of the ANC and all the other political parties. This arrangement, however, does not observe the principle of equal opportunities of political parties and negates proper procedures to obtain influence in parliament.
Constitutional Implications of Dual-Membership
The mechanism of double membership of political parties, which is used to get past the clear provisions of the Electoral Act, is not supported by the bill of rights. Section 19(1)(c) of the Constitution provides that every citizen has the right ‘to campaign for a party cause'. It does not provide for the scenario that candidates can campaign for the party cause of two different political parties.
According to the information available on the website of the IEC, the SACP is indeed a ‘registered political party' at the national level. It may therefore contest elections if it presents the IEC with a list of candidates, pays the required deposit, and comply with other statutory requirements all other parties must comply with as well. If the SAPC elects not to contest the elections, it is statutorily barred to have any of its members sitting in parliament. There are no exceptions to this rule in the Electoral Act.
COSATU, again, is a trade union, and not registered as a political party. It may therefore not participate in elections. It may, however, informally throw in its weight behind any of the parties that contests the elections.
In practice the ANC and the SACP have been registered as two different political parties and they also operate like that. Each of them hold their own party conferences and have their own party structures and political goals. The SACP ‘believes in the establishment of a socialist society, which it says should be characterised by democracy, equality, freedom, and the socialisation of the predominant part of the economy.' The SACP and COSATU have also openly disagreed with the government's macroeconomic strategy, Gear, and the privatisation of state assets, arguing that the policy has failed to create jobs.
The practice of dual party membership therefore boils down to a kind of Trojan horse within the ANC, with the SACP usurping the power of the mandate the ANC gets from their voters. The valid question is indeed what is the ‘party cause' of an extra-parliamentary coalition that does not even agree on policy issues? It is common cause, that the SACP and the ANC operate as two different parties and that they advocate very different policies, especially in the economic and labour area. How should the voters then know what they are actually voting for? This is in direct conflict with democratic accountability of political parties.
The dual-membership practice contravenes section 19(2) of the Constitution because it thwarts equal opportunities and equality of political parties. In terms of that some MPs do not represent only one political party, but two although they are on the list of party only. Conversely, it also inflates the principle of ‘one person, one vote', which means that each voter is entitled to one vote for one political party only. ANC/SACP/COSATU voters actually get far more than one vote. In fact, they get a second alliance party into parliament, even though that party is not willing to fight elections in its own capacity.
If the ANC and the SACP would like to continue on one list, this will require that they amalgamate and become one political party, possibly under a new name. (Section 16A of the Electoral Commissions Act 51 of 1996 regulates the change of a party's name.) This is a rather unlikely option three weeks before elections, because such a fusion can only be decided at a party conference where the members of each party agree to that.
The difficulty now is that the SACP did not register to participate in the elections, and the deadlines to raise objections to the voters' lists (section 15) or the lists of candidates (section 30) might already have transpired. Since ANC members with dual membership could claim that they run for the ANC and not the SACP nobody could have objected to that because the IEC has condoned this practice. The point, however, is that dual membership in itself is not compatible with fair elections. It perpetuates the extra-parliamentary politics of the liberation era instead of bringing politics into parliament where it belongs in a constitutional state.
Legally, one must therefore distinguish between different phases of the electoral process as set out above. Right now the electoral process is in phase three and the next phase is entered on 22 April. The election procedures prescribed by section 26 of the Electoral Act must then be in place. The procedural prescriptions for fair elections and the political rights guaranteed by the bill of rights cannot be negated, simply because some voters are dual members of political parties (phase two) or a party missed deadlines to put up candidates in phase three of the electoral process.
One may well wonder how the IEC thus far handled such dual membership in practice with regard to registration of candidates on the party lists. One would presume that a member card of a specific political party would have been required as proof that a candidate running for a specific party is indeed a member of that party only. This applies not only to the SACP and ANC, but to all other political parties. If candidates who claim to be ANC members, but who are actually closet communists and members of the SACP, are allowed to continue with this practice, this can have serious repercussions in the near future.
Many political observers have interpreted the Polokwane Rubicon to have been a take-over of power by the SACP within the ANC's structures. There are therefore substantial risks involved should this practice be perpetuated under the current political circumstances. There is no guarantee that they will not use their indirect power in parliament to undermine policies of the ANC or to break away as a communist faction. The SACP can therefore literally get into parliament under the wing of the ANC, and if the ANC allocate a third of its seats to them as it is speculated, they can break away after a few months and then operate officially under the banner of the SACP. This will give them the advantage that they got into parliament on the dual-ticket totally overrepresented without having had to contest elections. Such a potential break-away might substantially weaken the ANC if it again succeeds to get a mandate as ruling party. It may actually topple them from power.
The bottom line is that unless the correct procedures prescribed by the Electoral Act for all phases of the elections are not meticulously upheld, free and fair elections cannot be guaranteed.
Possible Constitutional Remedies
The IEC is a public body created by the Electoral Commissions Act 51 of 1996. It wields administrative state power in the electoral process in terms of section 5 of this Act. The IEC should be impartial and must exercise its powers and perform its functions ‘without fear, favour or prejudice' (section 3(2) of Act 51 of 1996).
As it was already indicated, the IEC is accountable to parliament: The National Assembly holds the purse-strings of the IEC and the latter must present a report to parliament that elections were fairly conducted (sections 13 and 14).
A number of constitutional and other statutory provisions are of importance for a review of this untenable practice of dual political membership in political parties by election candidates:
- Section 33(1) of the bill of rights stipulates that ‘everyone has the right to administrative action that is lawful, reasonable and procedurally fair'.
- Section 6 of the Promotion of Administrative Justice Act 3 of 2000 regulates when administrative action is subject to judicial review. Such administrative action is justiciable when it falls under the rubric of section 1(i)(a) of Act 3 of 2000 and has not been excluded by section 1(i)(b) of that Act. In this case judicial review of administrative action taken by the IEC has not been excluded and is open to judicial review.
- Ordinary courts, however, may not adjudicate administrative action taken by the IEC. A special Electoral Court with the standing of a Supreme Court has been created for these purposes (ch 5 of Act 51 of 1996). It consists of a chairperson of the Appellate division of the Supreme Court, two other judges of the Supreme Court and ‘two members who are South African citizens' (section 19 of Act 51 of 1996). Since all judges in a constitutional state must be trained lawyers, and the Electoral Court has the ranking of a supreme court, it is suggested that these two members cannot be ordinary citizens with no legal training. In practice, this rule has been upheld that the Electoral Court consists of judges only.
In terms of section 20 of Electoral Commissions Act, the Electoral Court may review any decision of the Commission relating to an electoral matter, and this must be conducted on an urgent basis. The way is therefore free to take the issue of dual membership in political parties to the Electoral Court.
Equal opportunities for potential ruling coalitions
The hurdle of section 26 of the Electoral Act and the other constitutional provisions mentioned above, are not the only objections that could be raised to this practice. This also directly impacts on the rules of practical politics in parliament and the cabinet itself. In a multi-party democratic system as it is prescribed for South Africa in terms of section 1(d) of the Constitution, ruling coalitions can only be formed after elections. If any one party does not get a clear majority to rule, its can form a coalition with another party to gain a majority to be able to rule.
In those times when the tripartite alliance had a land-slide majority in parliament, one could have argued that even if dual membership in political parties of candidates running for election were not a constitutionally tenable practice, it would not actually have made a difference to the political outcome. This, however, does not make it constitutional and in the current political landscape this is of great importance to secure fair elections and equal opportunities of all political parties.
Say for instance, that the ANC/SACP gets 38% (34% for ANC and 4% for SACP) of the votes in the next election. Assume further, for the sake of the argument, that the DA gets 15%, Cope 35%, ID 3%, IFP 4%, the UDM 3% and the rest together 2%. In this example, the ANC/SACP would have a majority and can rule if they run on one ticket with dual-membership because the ANC (with the SACP under its wing) will be the strongest party and will get political preference to form a ruling coalition with another other party. However, if each of them has to fight their own election campaign, the outcome would be totally different. Cope will then be the strongest party and will get the preference to form a ruling coalition. They can then choose to rule together with the DA (with 50% of the votes) or a combination of other smaller parties.
The relative strength of each party, again, is of importance for it determines their number of cabinet posts in a coalition government. As long as the ANC and SACP run on a single electoral ticket, their relative strength cannot be determined. This is either to the advantage of one party, or disadvantage of the other. It also precludes the SACP from entering into coalitions with other political parties if it does not run for the election in its own right. This, again, is to the disadvantage of SACP voters because it decreases the political leverage of their party and their right to hold their party politically accountable.
Fair elections in phase four of the electoral process depends heavily on upholding proper procedures in phases two and three. The outcome of the election result in phase six, again, depends on correct procedures in phase four.
Thus far the practice of dual political membership of candidates running for election has been condoned, but this time it may have far-reaching consequences. Any voter or political party who is of the opinion that this practice is no longer tolerable, would be able to lodge a complaint with the Electoral Court. Apart from that, independent observers who are monitoring the elections may also object to this practice.
In order to resolve this problem so shortly before the elections, an elegant solution might be that the IEC allows the SACP still to put up its own candidates for the coming elections, otherwise it will run the risk that the elections might have to be repeated if the dual membership practice continues. It is of great importance that every party should fight the elections fairly and in their own right.
Term of office of elected candidates
One of characteristics of a republican state is that MPs are office bearers on behalf of the voters. Section 1(d) of the Constitution stresses political accountability to the electorate. Although political parties are a go-between between the voters and parliament, the constituent power emanates from the people, not political parties (section 42(3) of the Constitution). This implies that once candidates have been elected as MPs, they have been elected for the full period of the duration of that elected parliament (section 49(1) of the Constitution).
In this context another practice undermines political accountability of MPs. That is the ANC's ‘cadre deployment' policy. Once an MP has been elected to parliament, he/she has a mandate from the voters to represent them for the party in parliament. In other words, they cannot afterwards be removed from office and ‘redeployed' elsewhere just because they speak their mind although this might not suit the party bosses. They are obliged to act in the best interest of the people they represent
This kind of revolving-door practice reminds one of the ironic poem by Bertoldt Brecht, which he wrote after the communist party in East Germany brutally suppressed a revolt on
17 June 1953:
After the uprising of the 17th June
the Secretary of the Writers' Union
had leaflets distributed in the Stalinallee
stating that the people
had forfeited the confidence of the government
and could win it back only
by redoubled efforts.
Would it not be easier
in that case for the government
to dissolve the people
and elect another?
The cadre deployment policy of the ANC also has the effect that the ANC's National Executive Committee (NEC) acts as a kind of ‘government within the government'. After the verdict of judge Nicholson in the first Zuma case against the National Prosecuting Authority, the ANC's NEC decided to ‘recall' former president Mbeki from office and to ‘redeploy' Kgalema Motlanthe to parliament to replace him.
Although the formal parliamentary procedures were subsequently used to endorse this controversial decision, it does not cover up the impropriety that the ANC's NEC has usurped parliamentary powers. Only parliament can exercise the powers to force the head of government to resign in terms of section 102 (motion of no confidence) or section 89(1) of the Constitution (removal from office).
The current president was sent as a ‘replacement' for former president Mbeki after he resigned from office. This is tantamount to a party-political revolving-door practice for no by-election was held to fill the vacancy. For Mothlante to have been able to follow up Mbeki, there should have been by-elections, and only then he could have been elected by the MPs as the new president. The proper procedures that ought to have been followed are stipulated in section 102.
Such by-elections also have implications for the kind of electoral system in place. The current electoral system provides for a purely proportional electoral system which assumes that the whole country is a single constituency. This makes by-elections if an MP dies, resigns for personal reasons, or has to resign in terms of section 47(1) of the Constitution (due to insolvency, a criminal conviction, insanity, etc) very cumbersome. This means that the whole country will have to go to the polls for every by-election at a national level. This is not practical. Therefore, the suggestions of the Slabbert Commission of Inquiry or another system providing for a combination of proportional and constituency-based elections would actually be sensible to ease strain in this regard.
* The DA has 47 seats in Parliament at this stage.
Loammi Wolf specialises in constitutional law and has a special interest in transitional democracy, constitutionalism and state organisation law. She obtained an LLM at the University of Virginia and a doctorate in constitutional law at Unisa. She also studied at the Karl Ruprecht University in Heidelberg and qualified in taxation law and chartered accountancy in Frankfurt, Germany. She is currently running the initiative Democracy for Peace.
