The Helen Zille Foundation’s report on National Assembly electoral reform

1 March 2021

INTRODUCTION

The Helen Suzman Foundation (“HSF”) has released a report on National Assembly Electoral Reform, which recommends significant changes to the electoral system for the National Assembly.

The Constitutional Court’s order of 11 June 2020 in New Nation Movement requires a change in South Africa’s electoral legislation. The Constitutional Court declared the Electoral Act unconstitutional for requiring that citizens may be elected to the National Assembly and Provincial Legislatures only through their membership in political parties. While it is possible to meet the Constitutional Court’s order with minimal changes to the electoral legislation by simply amending the legislation to accommodate independent candidates, the HSF believes that a thorough reform of the electoral system is now appropriate.

South Africa has had a closed party list proportional representation system from our first democratic election until the present. While this system was prescribed in the interim Constitution as part of the transitional arrangements, the final Constitution leaves the details of the electoral system to Parliament – requiring simply that the electoral system result, “in general, in proportional representation”. There are a number of different electoral systems that will yield proportional outcomes and the Constitution is not prescriptive as to which electoral system should be adopted.

THE HSF PROPOSAL

The HSF proposes the adoption of a mixed-member proportional system for election to the National Assembly. The HSF’s proposal draws upon the majority report of the Electoral Task Team (“ETT”), appointed by Cabinet in 2002 to draft new electoral legislation, albeit with some significant amendments. The HSF’s proposal also takes into account the core values identified by the ETT that an electoral system should embody, namely fairness, inclusiveness, simplicity and accountability. The HSF considers these values as bearing continued relevance to electoral reform, since they are firmly grounded in constitutional rights and values.  The HSF’s proposal also draws upon lessons from two countries with mixed-member proportional electoral systems, namely Germany and New Zealand.

The mixed-member proportional system proposed by the HSF envisages that the country will be divided into 55 multi-member constituencies, with constituencies following metro and district authority boundaries as far as possible. Each constituency would be allocated a number of seats (between 3 and 7) proportional to the number of registered voters in it – so as to ensure that each vote has approximate equal value.

Each voter would be issued with two ballot papers. The first would require a choice between candidates in his or her constituency and the second would require a choice between parties contesting the election. The first vote represents voter preferences about representation by individuals. The second represents voter preferences about representation by parties.

Parties contesting elections would field candidates in constituencies (“constituency candidates”), and would also draw up an ordered list of party candidates (“party list candidates”), as they do at present, up to a maximum of the number of party list seats. Two party list MPs would be assigned to each constituency, using an algorithm designed to maximize the probability that voters have at least one of the MPs associated with their constituency belonging to the party they support. The allocation of individual party list MPs to constituencies would be decided by party caucuses in Parliament.

Independent candidates can participate in the HSF’s proposed electoral system in two ways, with candidates making a choice as to how they wish to participate. First, independent candidates can stand for election in individual constituencies. Second, independent candidates may stand, effectively as parties, as party list members. The first option would be suitable for independent candidates with a geographical base in a particular constituency, while the second option would be suitable for candidates with support spread out over the country.

Constituency candidates would be ordered by the number of votes received and seats allocated going down the list until all constituency seats are filled. Parliament will need to make a choice between a simple approval voting system (in which voters may approve any number of candidates, with the winners being the most approved candidates), or a multiple transferable voting system (in which wasted votes are avoided by transferring votes to other preferred candidates).

Parties would be represented in proportion to the votes cast for them on the second ballot paper. The number of party list seats allocated would be the total allocation of seats minus the number of constituency seats won by members of that party.

Most seats in the National Assembly would be filled by members elected through constituencies. The remainder would be filled by members elected through votes for parties in order to meet the proportionality requirements in the Constitution. The number of the party list seats would be twice the number of constituencies, and the number of the constituency seats would be 400 minus the number of party list seats. This means that most members would be elected by defined groups of constituents and would be dependent on continuing constituent support.

CONCLUSION

The HSF does not view the adoption of a mixed-member proportional system as a silver bullet, which will resolve the challenges that Parliament faces in holding the Executive to account. Likewise, with political parties. The latter would still be responsible for adopting constituency candidates and compiling party lists, and the basis for party discipline would remain.

However, the HSF believes that its proposed reforms would create a system of incentives, which would in turn influence how actors behave and think about their actions. If the reforms are adopted, those contemplating careers as members of the National Assembly would need to cultivate relationships with constituencies, or at least substantial parts of constituencies, as well as with party structures. A record of community service would help, as would be the ability to interact with leaders of local civil society and business interests. This relationship of cultivation and dependence on constituencies would introduce new dynamics within parliamentary caucuses and between parliamentarians and party headquarters. In short, it would enhance our democracy.

The HSF’s report on National Assembly Electoral Reform can be found here.

Issued by Charles Simkins and Catherine Kruyer, HSF, 1 March 2021