Electoral Reform: Representation in the South African context

2 October 2020

INTRODUCTION

Members of parliament (MPs) are representatives who act both as politicians and as legislators. They represent their political parties in parliament, and as members of the legislature are responsible for passing laws. The relationship between political parties and the electorate is supposedly held in balance by the vote – we vote for X political party which in turn sends its proxy – the MP – to parliament. The MP, therefore, acts as an agent of both the political party and the voter.

The party-list system, however, creates a degree of distance between the voter and the MP. Under the party-list system the political party is responsible for placing its agent in parliament, not the voter. This direct relationship between political party and MP allows for an easy assessment of when MPs fail to represent party interests; they act against the party line. The consequence of this is also easy to anticipate – those MPs risk losing their seat in parliament. It would seem then that representation between the political party and its agent (the MP) is determined by how best that MP serves party interests.

The party representative is a creature we recognise. What of the legislator? Do we have the same expectations of our representatives when they sit in multi-party committees as law-makers versus when they debate in the House? If so, what are these expectations based on? Now that the Constitutional Court has ruled on the right of independent candidates to be directly voted into parliament, how will this affect our expectations of our representatives? The previous brief identified several conceptions of representation, while this one seeks to contextualise how representation plays out in the South African context.

REPRESENTATION THROUGH CONSENT AND COERCION

Coercion is the threat of sanction or the use of force. We generally understand this in terms of law and order. That is, coercion may be necessary but, in a democracy, it must also be legitimate. The sort of coercive state which stops short of being oppressive is one which we have legitimated, usually via some democratic “social contract.” Coercion is what helps us, as members of society, to co-exist within defined boundaries of interaction between each other, and with the state. These boundaries can be (and often are) abused, distorted, and manipulated – but when this happens in a democracy we can more easily identify when coercion is illegitimate and organise politically to express dissent.

Legitimate coercion, then, is closely tied to consent. Elections are a means of legitimating the consent to be represented and governed. The rule of law, and not by law, is one constraining measure to ensure that rights and freedoms exist harmoniously (and enforced by the penalty of criminal sanction). Procedural fairness and rationality are further features entrusted to safeguard decision-making, especially in public institutions. Legitimacy itself exists normatively, or empirically[1] - the benefit of perceptions of legitimacy is obedience to the law, promotion of its spirit, and support of sanction when it is transgressed[2].

CONSENT AND LEGITIMACY – A CONSTITUTIONAL PRESUPPOSITION?

When the consent of the governed fails, revolt succeeds. The sweeping spread of popular revolt during the Arab Spring is a contemporary historical marker of how perceptions of illegitimacy diminish consent. What about “deficient” law-making - can a legislator fail to represent? How would we determine this? Is consent explicitly given or is it a necessary condition for a legislator to act? A conservative view holds that constitutional legitimacy presupposes consent because of the benefits we receive from a constitutional order – these benefits are argued to create a duty to obey laws.[3]

This is fair in so far as laws will almost always necessarily fail to achieve unanimous popular consensus. But unanimous consent is the less interesting question as it fails to account for a farcical deliberative process even if such an attainable standard were met[4]. Proper engagement with these questions requires us to begin to imagine the legislator just as we do the party MP: a political representative with coercive power subject to our consent.

Hanna Pitkin’s oft-cited thesis[5] provides, “learning what “representation” means and how to represent are intimately connected.” Everyone seems to know that MPs are accountable to the electorate, but we aren’t quite sure how to conceptualise or enforce it. Knowing how to hold them accountable presupposes some sort of performance metric – if one exists it is not yet apparent. What should we watch and test for in assessing the “performance” of MPs in their various parliamentary roles? Outside of political parties, courts and ballot boxes – what responsibility does parliament, as an institution, have to devising, promoting and enforcing these performance standards?

If our answer is that a legislator fulfils a technical function, it should move us to examine whether our legislators act as such when they sit in committees to perform the function of law-making. This would require us to further conceive of a meaningful difference between the debate chambers of parliament – the House – and committees. Political grandstanding is par for the course in the National Assembly, but is it acceptable when our representatives don their legislator hats to consider law[6]?

HOW COHERENT ARE THE UNIT IDEAS OF REPRESENTATION[7]?

In part one, we explored various unit ideas of the concept of representation. Reflection soon reveals that it is logically impossible to subscribe to all these concepts. Of course, many individuals exhibit varying degrees of what the poet John Keats called negative capability,

“Negative Capability, that is, when a man is capable of being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason”[8]

but this does not remove the logical impossibility. It is possible for some concepts to be compatible with some others.

A few examples make the point:

The normative underpinning of promissory representation is the view that one ought to keep one’s promises, unless there are good reasons not to. Anticipatory representation does not imply subscription to this norm. It can be achieved by making it appear that the representative has promoted the interests of his constituency. Deceit, even outrageous lying, as the Trump presidency has shown, is capable of retaining the allegiance of supporters. 

Descriptive representation and gyroscopic or trustee representation are based on different norms. The question by an individual about a descriptive representative is: Is the representative like me, in respect of characteristics I consider important? The question about a gyroscopic representative is: Can I trust the representative’s judgment and inner light?

Populist politicians rely mostly on symbolic representation, specifically of the heart of a nation against its corrupters. They are not concerned with promissory representation and they have a quite specific notion of legitimacy not shared by all formalistic representatives.

Existing Marxism has relied heavily on substantive representation. Members of the bourgeoisie are incapable of representing the proletariat for two reasons: they have radically different interests and the bourgeoisie are so blinded by their ideology that they cannot even see what the interests of the proletariat are. Appeals to radically different ‘lived experiences’ have much the same effects. On this view, trusteeship is simply absurd.

EXPLORING REPRESENTATION IN THE SOUTH AFRICAN CONTEXT

Pitkin’s and Mansbridge’s intuitions have been formed in the political context of the United States where there is a more direct relationship between representative and constituent.

One may push the analysis further by considering the South African context:

In South Africa, the represented must first contend with the middleman in the form of the party structure – even at ward level where constituent interests should be primary, the behaviour of representatives often demonstrate that they are first accountable to the party and second to the public. This is especially pronounced in the National Assembly.

One may identify systematic variations in outlook across political parties. A current divergence in view between the ANC and the DA is over the concept of ‘non-racialism’. The ANC views it as achieved when there is demographic representation, principally by race, then by gender, and then by other characteristics, such as disability. For the DA now, non-racialism means not using race as a criterion for anything. This is bound to lead to different ideas of representation, as demonstrated by different practices in the selection of candidates for election to the National Assembly[9].

Electoral reform raises further questions about representation. The New Nation Movement case weakens the grip of parties as middlemen a little and, if reform means the introduction of constituencies, it will tilt the system towards substantive representation.

If we were able to identify our representatives according to the nature of the representation we receive – would that help us to design effective accountability mechanisms? For instance, of what worth is the threat of not being re-elected when the party is responsible for deciding who gets a seat in the House?

Already we see that the sort of sanction in formalistic, or anticipatory representation is weakened by proportional representation. And what of our existent channels of legitimation such as the unique Constitutional imperative of public participation as a core function of our legislature. We should care about whether facilitation of a procedural exercise is sufficient absent any criteria for meaningful engagement.[10]

CONCLUSION

The South African Constitution is often described as a democratic lodestar, and this applies equally to legislative exercises. Unlike the judiciary where judicial review, recusal, and inquiry are methods of accountability, or the executive where political sanction or court orders can stymie a wayward administration, parliament itself has relatively weak internal checks and balances. Rubber-stamping draft law from the Executive may not necessarily result in “bad law”, but it reveals a fault line in the process.

If it can be shown that the representative in the legislature is failing to represent – either the interests of the electorate or the interests of the nation in favour of insufficiently anchored party interests – what are the implications for the act of consent? If by consenting to the Constitution we necessarily consent to the legitimacy of parliamentary representation – what of the instances where legislators also fail to represent Constitutional interests? In such cases, our consent is, by extension, also diminished.

While the proof of this claim requires rigorous investigation, we must start by considering the question. At the very least it may push us to examine the quality of our social contract with our law-makers against Constitutional promises.

By Kimera Chetty, Legal Researcher, HSF, 2 October 2020

[1]Normative legitimacy describes a set of standards or norms rooted in right while empirical legitimacy comes down to belief (think of unofficial traffic points-men able to soothe frustrated motorists into complying with an orchestrated system of order simply by standing in the middle of a powered-down intersection with flailing arms – their legitimacy as points-men is real in so far as motorists believe it is, and obey them, notwithstanding that their conduct is unlawful.) Buchanan, Allen., & Keohane, Robert. (2006). The Legitimacy of Global Governance Institutions. Ethics & International Affairs, 20(4), 405-437

[2] Political scientist Jane Mansbridge contends that democracy is the best idea we’ve come up with (so far) to legitimate coercion, achieved through democratic features which include deliberation, negotiation, and human rights. Jane Mansbridge (2019) Representation, legitimacy, and innovation, Journal of Chinese Governance, 4:4, 299-322

[3] The argument is extended to hold that laws passed under a legitimate constitutional authority binds us in conscience as a moral duty of obedience exists. Barnett, Randy E. 2003. “Constitutional Legitimacy” Boston Univ. School of Law Working Paper 01-19; Columbia Law Review, Vol. 103, No. 1.

[4] Our often abysmal public consultation and participation processes, despite being a constitutional imperative, is some evidence of this disconnect between “consensus” and weak deliberation.

[5] Pitkin, Hanna Fenichel, 1967. The Concept of Representation, Berkeley: University of California.

[6] Political creep within legislatures is certainly not a South African phenomenon, in her book, Why We Get the Wrong Politicians, journalist Isabel Hardman, describes the common occurrence of party whips in the UK observing newer MPs in committees precisely to ascertain who is most successful as pushing the party line – and rewarding such behaviour. https://www.amazon.com/Why-We-Get-Wrong-Politicians/dp/1782399739

[7] Special thanks to Charles Simkins for the contribution of these examples

[8]Letter to his brothers, 22 December 1817

[9] Special thanks to Charles Simkins for this point.

[10] The concept of meaningful engagement in public participation requires further interrogation. While the landmark Constitutional Court judgment of Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11, declared that parliament had a constitutional duty to facilitate public participation, it deferred to the principle of separation of powers in allowing parliament to determine how it should go about this facilitation.