Is the Electoral Amendment Bill Unconstitutional?

16 Aug 2022 (1 month, 2 weeks ago)

We sat down with Election Analyst, Michael Atkins, to discuss the electoral Amendment Bill and what consequences it will have for the 2024 national elections. Read the interview transcript below, and listen to the audio here.

Please note that this is not a verbatim transcript, as it has been edited for readability

People's Assembly

What do you think are the positive aspects of the bill, if any?

Michael Atkins

Look, I don't have a lot positive to say. I mean, one can observe, yes, it's allowing independents to stand for election, but then that was mandated by the court. So I think one positive thing about the fact that we have a bill is that the conversation about electoral systems is now on the table. Not many people know that the 1999 election, if you can call it, was the first election in the new order. 94 was a special case. But the 99 election, with pure proportionality, was never meant to be the final system. It wasn't ever written down but it was always understood in the negotiation process and the finalizing of the Constitution, that that first 99 election was to get us going, and then it would be reviewed after that.

So, you had the Van Zyl Slabbert Commission, which reported in 2003, and proposed an alternative. But there's been no electoral reform that's ever been undertaken since that. And so what is good about the bill... and I will say that the bill is flawed, even fatally flawed, as it stands. But what's good is we at least now have this thing of electoral reform on the table. And I'm not agreeing or disagreeing, but even the Zondo commission pointed to the need for electoral reform in terms of how parliament has functioned. So the fact that it's there is good. I see this bill as a starting point, but certainly not as an ending point.

People's Assembly

And on your point about the Zondo Commission's recommendations, in relation to electoral reform, do you believe that those recommendations are workable and feasible?

Michael Atkins

Right, I disagree with the reasoning on a direct Presidential election. Our electoral system is premised on the Constitution being supreme, and then Parliament, representing the will of the nation and our Executive being subjected to Parliament. If you have a direct Presidential election, in a sense, the President will say, well, he draws his mandate from the people not from Parliament. Now, many may say, "Oh, but the President has not been accountable to Parliament at various times". And I can say not only one President has had that complaint, but that is a fault more of the structure of Parliament than it is about the structure of the Presidency. So I believe a directly elected President would be less accountable to Parliament than is the case at present. What we need is to change the electoral system so that MPs are more accountable to their direct electorate, which in turn, they would be more likely to hold the Executive to account.

People's Assembly

Okay, thank you. So, you have mentioned that you believe the bill is fatally flawed, and you've also even gone as far to say that it is unconstitutional. Can you walk us through the points, step by step, on why you believe this?

Michael Atkins

The bill is based on a proposal put forward to the Ministerial Advisory Committee last year. That committee was tasked by the Minister to investigate options to comply with the court action. Now, the Minister chose the alternate proposal put forward by the Ministerial Advisory Committee. Now this option has a problem. As the bill was originally published, it has individuals being independent candidates on the same ballot paper as parties. Now, our Constitution - Section 46 and then Section 105 for the provincial legislatures - requires that the elections result in proportional representation. This system of proportional representation refers to parties. The moment you have individuals on that ballot, they capture a single seat. Obviously, because it's one person. So when you do the calculations under proportional representation, you get this possibility that an individual could be awarded five seats, but actually they can only get one. And if you have that problem on a ballot, what happens to those other four seats?

Now, the problem is those other four seats don't disappear. They get given to the parties in proportion to the party's existing support. So that means if there's four excess seats floating around, the largest party gets two of them. So in effect, the largest party gets a bonus of two seats above their proportional share of the vote. So literally, and I'm not speaking about the politics of it, but we can take note of what's happening in the country; if the ANC literally gets 49.5%, that's 198 seats. And if there are six excess seats that independents can't take up? Well, the ANC is going to get half of that. So the ANC is going to get 201 seats (a majority), when they actually earned 198, which is not a majority.

Now, as the original bill was structured, there were several things that led to this but effectively, the largest party could have gotten a bonus of 15 or 20 seats, over and above their share of the vote. There's various technical reasons for that. And essentially, when you vote for an independent candidate, some of those votes are wasted. So too many people vote for a candidate and only one goes in - and what happens is that they say they discard those votes when they do the proportional calculations, but it's actually the same as taking that the wasted vote and sharing it among the parties. So literally, if I vote for an independent candidate, my vote would then get shared among the parties, in proportion to how everybody else voted. Now that principle offends the notion of proportionality, both in terms of how the final calculations work, and from the perspective of the individual voter.

People's Assembly

Definitely. That does seem like an unfavorable benefit to the majority party, even if they don't receive a majority of the votes, right?

Michael Atkins

Yes, it will always be that the larger parties get a higher seat share then their vote share. If there is, call it a 5% bump - in other words, 5% of the votes that are cast in total, and cast for independent candidates and land up not counting for independent candidates - that's equivalent to 20 seats. Now, those 20 seats get shared among the parties, but if you take the smallest parties and you effectively bump their vote up by 5%, they don't get the extra seat. But you take the ANC and you bump it up, let's say by half of those, they're going to get 10 of those seats, 11 of those seats. And that is a bonus that's just granted simply by being the largest party. In the provincial legislatures the same thing would apply. Let's say in the Western Cape, the DA could win the Western Cape provincial legislature with 47% of the vote, they could get the 22 seats out of 42. With literally 46% or 47% of the vote.

People's Assembly

Right. So then in that case, independent candidates don't really stand a chance to have much power in Parliament.

Michael Atkins

Well, there's one other step. You see independent candidate... I don't want to get bogged down in the technicalities, but in terms of the bill, they can contest seats only in the regions. The independent candidates share access to 200 seats, not 400 seats, but there's still the same number of votes. So with minor complications, if you have, say, two decent independent candidates in a province or in a region, effectively, the second and third good candidates in that region are going to have to be getting 80 000 or 90,000 votes to get elected. It's just the way the calculations work - there's remainders. So if you have three good independent candidates in Gauteng , one will get elected with 58,000 votes, the next one would need 75,000, and then the third one would need over 90,000 votes to be elected. Now, parties require effectively only 45,000 votes to guarantee a seat. So there is a threshold as well. That's not so much the proportionality that I've done a lot of the analysis on, but you could call it the right to free elections to fair elections. Or you could look at equality before the law in terms of constitutional problem, you know, constitutional consideration.

People's Assembly

Right. Thank you. Thank you for that explanation. That does make sense. So then, which specific corrections to the bill do you propose?

Michael Atkins

Right, there have been a number of corrections made. Now there's one correction that has gone almost unremarked. It was about six or seven weeks ago. It was, in my view, an earth-shattering correction. The IEC, in their submissions, (not the original ones in February, but in their submissions in May and then June) proposed that there be two ballots for the National Assembly. Now, like in local government, if you take the metros, there are two ballots. There's your ward ballot, which is a constituency, and then there is the PR ballot where only parties stand. In effect the two ballots that the IEC proposed for the National Assembly, were for the overall PR only with parties, and then for the regions. So independent candidates would stand within a province, which gets referred to as a region. The committee is not enjoying the terminology of a constituency, but it is effectively what it is.

So if you separate out the ballots, if you have two ballots, and you work out the overall proportional representation in Parliament, only on the PR ballot, you do achieve proportionality in the National Assembly. Now, the IEC proposed that amendment and it was accepted by the Committee with no comment. Now, my question would be why would the IEC add 50% to their workload over an election time unless they had to? Their budgets are desperately constrained. The counting time, the cost of ballots, and everything else gets increased. Now the reason is, in their document to Parliament, they said literally that it is crucial in terms of Section 46 of the Constitution. So, literally in writing, they said the second ballot is necessary to achieve proportional representation. Now they are correct.

So, what I'm saying is the only way to achieve this proportional representation is separate constituency and PR ballots. Now there are some systems in Europe where they have a mixed system where individuals can stand and they have PR and they don't have a separate ballot - but those countries do not have a constitutional requirement that the overall system is proportional. So in those countries, independent candidates excuse the proportionality, but there are not many independents standing in those places and nobody notices. We have this requirement for proportionality built into the Constitution. So literally, the only way to do it is separate PR and constituency ballots. But this is also true for provincial legislatures. In trying to work with the original bill (which I call the unworkable bill because it was untenable from day one), they've got the regional ballots on our constituency ballots. So literally, the whole accounting is for a constituency and it will have 48 MPs in the constituency. And in that terminology it doesn't really make sense, but from a proportionality point of view, it kind of works. Except we do this at local government.

To work out the PR totals the composition of a council that add the ward ballots to the PR ballots to get a combined total. Now, nobody has questioned that system in all these years. And basically, it can be shown very easily that doing that at the National Assembly, which is what was proposed, will still create the disproportionality. It keeps half of that bonus effect that I was talking about, and my rough calculations at the moment show that the ANC sitting at or around or just below 50% would get maybe an eight seat bonus simply by combining the regional ballot and the PR ballot to work out the PR totals. So that that can be changed, but effectively, nobody is taking that on board at the moment. And that kind of thing is very easy to show in spreadsheets .You can take a hypothetical election, you run a few hypothetical independent candidates in each province, you can play with the numbers, and then do the final calculation one way or the other. And if the two ballots are combined for the total, you are combining that disproportionality from where the individuals are on the same ballot as the parties. You combine that and you still have that effect of inflating the largest parties, seat share. So that can be fixed. Our problem is in the provincial legislatures, the problem can't be fixed.

There is no way to have ballot constituencies below the province level within the timeframe for the 2024 election. Now what we have is Parliament running on a clock ticking as set by the court. They've already extended the deadline. They are determined to pass a bill, effectively any bill. But the Minister was warned, possibly nearly two years ago, that if they wanted a proper constituency system, where there were boundaries below the provincial level, the IEC needed that to be finalized before the end of last year. This is because they've got to change their systems, they've got to have demarcations take place. The moment you have constituencies, you've got a whole raft of complications. So in effect, we're actually a little bit stuck within the current timeframes for passing this bill by the end of the year, and for holding the 2024 elections. There is no way that we can have constituencies below the provincial level. That means, as I read it, it is very difficult to have a fully constitutional bill in place for the 2024 election.

There is one other thing which could be changed and the committee is discussing it: that is this the requirement for signatures. When the early public consultation happened, a couple of the parties were saying independent candidates needed 20,000 signatures to register as a candidate. Now this is absurd, because ward candidates require 50 signatures to register as an independent ward candidate. The committee changed it to say, "Oh no, we need 50% of what the quota was from the previous election". Okay, but that's still twenty something thousand signatures and each one has to be verified by the IEC. Now the committee is still in discussion, and they are likely to revise this down to 10% which would be 4000 odd signatures. But a party contesting a municipality in the local government election, if they contest a single municipality they need only 300 signatures. So party contesting the whole of Nelson Mandela Bay needs 300 signatures whereas a single independent candidate is going to need 4000 signatures. That that is an absurd burden, and it is definitely a barrier to independent candidates.

People's Assembly

You said the parties contesting in a municipality would only need 300 signatures?

Michael Atkins

Yes, 300 or 500, because there's a provision at local government where you can register a party that contests only one municipality, and there are several of those. So, I'm not favoring anyone, but in the Nelson Mandela Bay there's a group called the Abantu Integrity Movement, and they have a councillor now, and I chatted to one of their guys and he said no, they only need 300 signatures to register.

People's Assembly

That definitely seems like an unfair burden to place on an independent candidate. So also, I mean, with regards to the committee's willingness to actually accept corrections, and to comment on corrections, do you believe that the public participation processes that were carried out for the bill were sufficient? And where would you suggest that Parliament could improve?

Michael Atkins

Okay, Parliament had opened in February, a window for written submissions. A number of people made written submissions there, and some of those people were allowed to present orally to the committee. That process was fine and that was normal, but then they had slightly hasty public consultations and public meetings. What was one thing that was a practical thing that was wrong in those public meetings, is that they allowed multiple people to read the same script, representing a party's view. So in some of those hearings, you literally had 20 people reading the same script. And as a practical thing, that tends to drown out the lone voices which are genuine public comments. So, it was poorly managed. Now, I need to be a little bit careful... I submitted a very thorough analysis of the bill looking at the proportionality problems in February, and some of those things have not been addressed. I've worked with a few civil society bodies and we have made presentations to the committee outside of the official public consultations. I've done quite a lot of written analyses of the current status of the bill as it has developed, and we haven't been getting acknowledgement from the committee in that regard. So in one sense, they did do the process that they were supposed to do. There were complaints about the timing and, certainly, the management of that public consultation was not good. Whether the committee has considered all of the substantive inputs is difficult to say. I wouldn't know who went through those written submissions and evaluated them, and whether the the merits of those written submissions were considered by the committee. I wouldn't be able to give an opinion on that.

But if I may raise, there's a deeper question here in terms of public consultation. When you consult with the public, normally you would give the public a real choice: yes or no to this bill. But the trouble is, the court has said we have to change our electoral system. So the no option, "No, let's stay as we are", has never been on the table and cannot be on the table. So although they've been through the mechanisms of consulting on a bill as they haven't with other bills, and possibly have followed the letter of the law, in terms of the All Doctors for Life judgment back in about 2005 in terms of public consultation, there's one respect that they really haven't done. They have not offered a meaningful choice to the public to comment on. If you look at electoral reform as a special case, various countries have had discussions about electoral systems. And some have changed, some have not changed. Sometimes there's been a referendum, sometimes there hasn't. But in every case, every public debate about electoral reform in any country has had two options: it's had the option of let's change to a new system, or let's stay as we are.

The public then has a meaningful debate comparing two systems. We haven't been offered two systems to discuss. The Minister picked an option that was written that has no precedent anywhere in the world, that was not publicly submitted to that Ministerial Advisory Committee. The system was devised by the former head of the demarcation board, the former Deputy CEO of the IEC, and the former Chairperson of the IEC. Those three people devised the bill, and they are absolute insiders. You know, establishment insiders. They devised a system, they demanded in that Ministerial Advisory Committee that their system be included in the report, the Minister chose that system. The Minister then caused a bill to be drafted on the basis of that system. The public has not been given a choice. All of the public consultation was about the details. "How many signatures," and this and that. "Should there be a deposit or not a deposit?" Those are all details. There was no substantive choice. So essentially, I'm arguing that when it comes to electoral systems, we can't stay as we are, because that excludes independent candidates. But we actually need to have two constitutional options on the table for public discussion and debate for that consultation to be meaningful and for the public to be making a meaningful choice. And there is more than one constitutionally viable system available to us.

People's Assembly

And with that being said, that there are more than one constitutional systems or options, what sort of reforms would you like to see? What sort of electoral systems do you believe to be good alternatives?

Michael Atkins

Essentially, it has to be a hybrid of PR and a constituency system. Now, many people have been calling for some kind of constituency system. We still need the PR balancing, it's in the Constitution and in a diverse country, you need proportional representation to represent the interests of minorities. So in a pure constituency system, you'll end up with a two or three horse race, and that's it. And we're a diverse country, we've got many... it's not even about racial groups, it's socio-economic classes, ideological positions.... So we need PR to get accountability, and we need a form of constituency system. Now, in essence, there are three substantive systems on the table at the moment. One is a what would be called a multi member constituency, where you get a region of three to seven MPs - so that's, like 400 000 to 800,000 voters in a region. You have a proportional election within that region and you elect those 3, 4, 5, 6 or 7 MPs who represent that that district. Then you have a separate PR ballot which only has parties. Individuals would then stand in those constituencies.

The main alternative to that is the option that was recommended by the Ministerial Advisory Committee, which was chaired by Valli Moosa, and that is to have what are termed 'single member constituencies'. It would be similar to our local government arrangement. They proposed half of the seats, 200 of the 400, be constituencies, and the other 200 seats exist to balance our proportionality. Now the largest party will tend to win more constituencies because they'll dominate in more areas. So then the parties that can't get enough support in a particular area can then get their share of the seats n the other 200. A couple of points, the Ministerial Advisory Committee correctly advised that the constituency votes don't count towards the PR totals as we do at local government. And I'm actually suspecting that our local government system is unconstitutional in that detail. What that system does, it allows for true local accountability. I won't go into all the details, but I'm personally leaning towards those single member constituencies. You could have as many as 250 of the 400 being constituencies and then 150 for the PR lists.

The third option on the table is a bill that was submitted to Parliament as a private member's bill by Mosiuoa Lekota of COPE. It's referred to as a 'single transferable vote', that, in essence, is multi member constituencies. But, effectively, it allows an independent candidate support for for them to transfer to another candidate, should they leave parliament or should they not gain enough votes to be elected. It's a little complicated, but it is on the table and it is a workable system. So I would say we need a proper public discussion. Should we have multi member constituencies as proposed by the Van Zyl Slabbert Commission back in 2003? Or should we have single member constituencies also balanced by PR? Now one small detail, if you don't link those two ballots together in the PR totals, which I say is unconstitutional... If you don't link them, then parties don't need to contest every constituency in order to harvest those votes for their PR totals. So you then get meaningful elections in each constituency. You'd have, say around 130,000 registered voters, around 90,000 would vote typically. You'd need 45,000 votes to guarantee an absolute majority in that constituency. But if the vote is split and you've got a few parties, you could easily win a constituency with 30 odd thousand or 35,000 votes. But what it means is there would only be four or five parties contesting that particular constituency, and you would potentially have independent candidates contesting it. It would literally be, "May the best man win".

The best candidate would have the opportunity for winning that ward. I could vote for an independent... I don't want to pick a party, but you understand, I'm in KZN so let's say that I support the IFP. I might support the IFP, but ActionSA has the best candidate in my constituency. I'm not hurting my favorite party by voting for the best candidate in my ward, because my PR vote is what determines the party's overall support. What that then means is that parties are highly motivated, at their the local branches, to advance the best candidates possible in their constituencies. Suddenly, you then have a higher quality of MP at the local level. Now, the reason I'm going on about that - although it is my favorite view - is because nobody is particularly advocating for that system at the moment. None of the NGOs, none of the civil society bodies, nobody actually advocated for that. What I would say as an analyst, is that we need a conversation where the benefits and disadvantages of each system are fully explored and fully debated in public. Only then a decision should be made as to which system is best, rather than the Minister plucking a plan out of nowhere and then just basically forcing it on us.

People's Assembly

And do you believe that we can have those sorts of deliberations and make an effective workable proposal in time for the 2024 elections.

Michael Atkins

No, not 2024. If I can say, that ship has sailed, because to have a meaningful constituency system, there is not enough time for the IEC to rebuild their electoral systems. There would need to be an Act of Parliament that altered the function of the Demarcation Board to encompass national and provincial elections, because it is currently the municipal Demarcation Board. They would then need to go through their own processes of demarcating constituencies and taking public comments on that. Then the IEC would need to build their systems and prepare for the elections. The IEC warned the Minister, as I said a long time ago, that the end of last year was the final deadline for that to happen. So we actually have a conundrum for what 2024 is going to look like. Do we have a compromise with the best version of a flawed bill, or do we stick with the old system? Neither is a happy outcome. They are both deeply, deeply unhappy outcomes.

But my biggest concern is that if an unconstitutional bill gets passed, the IEC then starts preparing and rebuilding their systems for the new structure, and six months later, the ConCourt rules that that's unconstitutional, and that has to get thrown away. So we need to be proceeding with care. The committee has worked incredibly hard, and they've hammered out a lot of important details, but in essence they haven't questioned the really big problems of proportionality. They've made strides for the National Assembly with the two ballots, but they are not hearing the fact that, for example, the two ballots can't be counted together. So 2024 is a problem. I'm sticking my neck out and saying it's not logically possible to hold a fully constitutionally compliant election in 2024, and that it is going to be up to the court to make a ruling condoning one or other form of unconstitutionality for the 2024. And boy, we better get it right in enough time for 2029.

People's Assembly

Thank you, thank you for that response. So, our job as an NGO, is to definitely push the public to try and solicit these kinds of conversations and offer help to Parliament and make recommendations. So if we were to push the public, what sort of key questions should we be posing to them?

Michael Atkins

In a sense, the easiest and simplest question is that of signatures. The independent candidates cannot have a burden that is out of sync with what parties are required to do. It's got to be in proportion, bearing in mind that parties can gain multiple seats and independent candidates cannot. So, if you were to take what independent ward candidates are required to obtain, which is 50 signatures, you could extrapolate that to maybe 500 or 1000 signatures as proof of a fair degree of public support. That to me is a no-brainer, and I would argue that that's a very strong thing that can be done, and it can be achieved. The questions of proportionality, it's difficult, mainly because most of us are not familiar with the mechanisms of the seat allocation process.

There's various ways where you take out the the votes and the seats for independents and you recalculate for the parties, but when you change the quota per seat, if you drop that quota, you benefit the largest party. It's just the way the seat allocation works, and it's difficult to hold those conversations when most of us are not particularly familiar with the workings of the seat allocations. So essentially, it cannot be that my vote for an independent candidate contributes towards larger parties gaining seats. To me, that is one of the fundamental facets of an electoral system and of proportional representation. If I choose not to vote for parties, I don't want the choices of other voters to determine what happens to a quarter or three quarters of my vote.

When you judge proportionality and fairness, you've got to look at it from the overall balance of Parliament, you've got to look at it from the perspective of the individual, independent candidate, and then you've got to look at it from the perspective of, "What does my vote accomplish?" Depending on how you think about it, a part of my vote if I'm voting for an independent under the the bill, is going to be given to parties. To me, that's untenable. There are things which can make the deficits and things not quite as bad. At the moment, only 200 seats are available out of the 400 to independent candidates in the regions. That puts the effective threshold for getting in between 70 000 and 90 000 votes.

If they made 300 of the 400 seats available to the regions, and only had 100 for balancing proportionality, then you would have the case where the effective threshold was 55 000 to 60 000, which is a lot better, but people might still quibble. But the Committee has said nope, they don't want 300. What happens is that people call things policy questions, when in fact they do have constitutional implications. So the other practical thing is that if they are going to push through the current system, then at least make more seats available to independent candidates in those regional ballots so that they don't have to climb such a high mountain in order to get into to Parliament.

People's Assembly

Thank you. There's there's a lot to think about. And certainly you're right that most of us don't understand how seats are necessarily allocated. But I think that your responses have will definitely be very useful as we try and navigate this bill. Those are all of my questions for today. I will be in contact with you further, but I really appreciate your responses and this has been incredibly informative.

Michael Atkins

Thank you. And, you know, I'm a big admirer of the work that you do both with the People's Assembly website and the Parliamentary Monitoring Group's website. I make use of the websites quite a lot in pursuing this. If I can just make one concluding remark: I have said that it is my view that the current bill cannot survive in whatever form. There might be a compromised position, but I am of the view that there will need to be a fresh start to the process. My greatest wish, is that going into the future, when we discuss this again, that there is a meaningful public discussion between two different electoral systems that are both constitutionally compliant, and that people can discuss the pros and cons of each. Then there would be a meaningful choice. The Minister may not intend that to happen, but civil society can stand up and say, "No, you've got to do this right." Electoral reform cuts to the heart of any democracy, and it cannot be that there is a backroom deal that chooses a system and then lets you debate the details of it. An electoral system is a matter for the whole voting public to participate in.



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