Van Der Merwe's Constitution Fifteenth Amendment Bill (Floor Crossing); Petitions delivered to Parliament

Meeting report

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS STANDING COMMITTEE
30 January 2007
VAN DER MERWE'S CONSTITUTION FIFTEENTH AMENDMENT BILL (FLOOR CROSSING) & PETITIONS DELIVERED TO PARLIAMENT

Chairperson:  Ms P Mentor (ANC)

Documents handed out:
Research document on Floor Crossing: Germany, United Kingdom, Canada, Brazil, Lesotho and Kenya. January 2007

SUMMARY
The Chairperson noted that the leader of the National Assembly and the Chairperson of the NCOP had put together a panel of inspectors who were to examine whether Parliament was doing what was expected of it in terms of the Constitution. The issues of public participation and public involvement, and the issue of public participations were key. It seemed that Committees did not always receive public petitions presented to Parliament and this was clearly contrary to the constitutional principles. Members expressed their disquiet, stressing that all matters should be dealt with appropriately, that Parliament should assist in having provincial and municipal offices available to accept memoranda from the public, and that the Committee should draft a memorandum setting out its views on how such matters should be handled.

Parliamentary researchers on floor crossing gave a brief overview of their research document on floor crossing, following the terms of reference given at the end of the previous term. They had focused on comparatives on the developing countries of Kenya, Germany and Brazil and the developed countries of the United Kingdom, Germany and Canada. They discussed the political systems, historical context, electoral systems, purpose for the legislation and floor crossing systems for each country. Attitudes towards floor crossing were largely determined by the history and nature of the politics of the country concerned. In some countries the practice of floor crossing was seen as being dysfunctional and undermining representative democracy. In other countries it was the norm, where voters vote for the personality not the party. In Kenya floor crossing was a strategy to enable the ruling party to address institutional challenges and implement political reforms. It could also be viewed as a way of managing political tensions within a party. Floor crossing was less likely to occur in countries with well-established and stable party systems, and it could undermine already weak party systems and compound instability. The impact of floor crossing on the political party also varied considerably. They concluded that the comparisons were useful, but that it must be remembered that other countries should be considered in their own contexts. Members believed the issue of voter sentiment was crucial. Voters at a recent road show had not expressed support for floor crossing. The Committee would study and seriously consider the electoral system bill proposal before it, and examine the electoral system in conjunction with floor crossing. One member stressed that the background to the issue must always be borne in mind. The Chairperson requested members to examine if they considered floor crossing to be truly in line with the advancement of democracy, and whether parliament was delivering on the principles of the Constitution. It was agreed that the matter be fully debated in this term with a view to reaching a decision in the second term.

The Committee adopted the minutes of its previous meeting.

MINUTES
Petitions to Parliament and related issues
The Chairperson noted that the leader of the National Assembly and the Chairperson of the NCOP had put together a panel of inspectors who were to examine whether Parliament was doing what was expected of it in terms of the Constitution. The issue of public participation and public involvement was a focal point, and so was the issue of public petitions. The Committee would have to ensure that it was serious in its approach. Questions had been raised as to whether petitions of groups marching to Parliament had ever been considered by any Committee, as they received no feedback and there was not serious consideration. This Committee had not received the petition handed in by the march in support of. Parliament was found wanting in terms of how it dealt with public petitions. It would be expected that the Speaker and the National Chairman would direct memos to a committee of Parliament.

The Chairperson further noted that in addition Honourable Members Colin Eglin and van Zyl Slabbert had drawn up a reference book of Members of Parliament.

Discussion
Ms S Rajbally (MF) suggested that the chairperson write to the Speaker or the Secretary of Parliament, asking where the memoranda referred to had been directed. Petitions came through the Private Members Committee, so she queried why they were not coming to this Committee, even if the Committee had to call an early meeting. It seemed that sometimes the Ministers or Chairpersons would receive a memorandum but it was not referred to those who would have to deal with it.

Mr S Mshudulu (ANC) referred to the constitutional guidelines that no matter who had received a petition, it would be dealt with constitutionally. It was important that these petitions be followed up and monitored. Rural people often did not have the opportunity to submit petitions and he suggested that provinces and municipalities should establish offices to receive petitions. Parliament had a duty in terms of its mandate to assist local government in this respect.

The Chairperson agreed with that proposal. It was the constitutional right of all South Africans to petition Parliament. She questioned whether there were policies and guidelines for consideration of these memoranda. She stressed that it was necessary to respond and to take petitions seriously. She felt that the Committee needed to draft a memorandum setting out its views on how such matters should be handled.

Floor Crossing: Results of research
Ms C Silkstone, Researcher, Information Services Section (ISS) tabled the research document on floor crossing. She summarised that the terms of reference had been to sample two developed countries and two developing democracies to check what the floor crossing situation was in terms of the seat and the member crossing over to another party. Further the researchers were to establish any other surveys had been conducted to check public opinion regarding floor crossing. If not the researchers were requested to do a mini survey. Finally, a resume of the deliberations and discussions of the ad hoc committee that operated at the time when Parliament decided to legislate for floor crossing should be prepared.

Ms Silkstone and Mr X Majola, Researcher, ISS gave a brief overview of the document. They had focused on comparatives on the developing countries of Kenya, Germany and Brazil and the developed countries of the United Kingdom, Germany and Canada. The political systems, historical context, electoral systems, purpose for the legislation and floor crossing systems were discussed in detail.

In brief, they outlined the results of their findings. In the United Kingdom floor crossing was permitted as the electorate voted for the individual candidate and not the party. Parliamentarians did not automatically lose their seats on switching their party. However, some believed that an MP who gave up the allegiance that appeared on the ballot paper should ask his electorate for their endorsement.

Germany had no legislation in place that specifically sanctioned or prohibited floor crossing. Members represented the whole people and were not bound by orders or instructions, but responsible only to their conscience. Floor crossing did not seem to be a common phenomenon in Germany.

Canada did not have any legislation prohibiting floor crossing. Members were not required to retain a party label during the whole of their mandate. ‘A member changing party allegiance was under no obligation to resign his or her seat.  Floor crossing did not seem to be a regular occurrence in the Parliament of Canada.

In Brazil the military government, prior to 1981, imposed a two party system and floor crossing was not allowed. After 1981 many new parties were formed and during that period floor crossing occurred due to party survival. Recently there had been few party mergers and the majority of floor crossing occurred from one existing party to another. There was no legislation in place that either specifically sanctioned or prohibited floor crossing. Citizens cast votes for specific candidates and their votes completely determined the order of candidates within each party, so that parties did not have the power to decide which candidates would fill seats. Elected politicians often acted independent of party rules, as they owed their mandates to their own work and not to their parties. They also could switch parties between elections and still be guaranteed the right to run for office in the next election on the new party’s ticket.

The system in Lesotho permitted members of Parliament to cross the floor to other parties without losing their Parliamentary seat. In 2002 only the 80 members elected through a constituency based electoral system were allowed to cross the floor without losing their seats, while the 40 members elected through a proportional representation electoral system could not do so. Despite these reforms, commentators Matlosa and Shale argued that floor crossing continued to impact negatively on parliamentary democracy and institutional effectiveness. A number of reasons were put forward as to why it was undesirable, more fully dealt with in the memorandum. It was argued that floor crossing destabilised the party system, leading to a proliferation of parties, whose capacity to contribute meaningfully to effective governance was weakened. Personal ambitions took precedence over mandates and service delivery. The electorate felt let down, and legislators no longer enjoyed public confidence and support. Although there were also problems in the party political system and leadership within parties, it was argued  that floor crossing posed a serious challenge to participatory and representative democracy.

In Kenya, floor crossing legislation was introduced as a political management tool to mitigate party political tensions, and also to curtail potential clashes between members of parliament of the different political groups. Its main objective was to propel transformation within the Kenyan Parliament. The legislation was effected in order to ensure a 90% mandate to undertake constitutional amendments. Members of Parliament, who crossed the floor to join other parties or to form their own political parties, did not lose their seats.
In Kenya, floor crossing had not appeared to affect parliamentary stability, but rather helped it to ensure that rigid franchises and obstacles were removed.

The researchers concluded that attitudes towards floor crossing were largely determined by the history and the nature of the politics of the country concerned. In some countries the practice of floor crossing was seen as being dysfunctional, hurting efficiency, responsibility and transparency – generally undermining representative democracy (for example Germany had a strong and stable party system and floor crossing seldom occurred). In other countries it was the norm as in Brazil where the party system remained fragile and the tendency was to vote for the personality and not the party. In Kenya floor crossing was a strategy to enable the ruling party to address institutional challenges and implement political reforms. It could also be viewed as a way of managing political tensions within a party, providing space for those parliamentarians who were not satisfied about party policies, or leadership style, to abandon their own political parties. This argument found support in the notion that parliamentarians should be able to make their own decisions based on conscience.

The impact of floor crossing for the individual parliamentarian and for parties varied considerably from one country to another. While the law might permit floor crossing, parliamentarians who crossed the floor frequently found themselves without a seat at the next election (as in the United Kingdom and in Germany). In Brazil, however, the fact that the politician could offer his or her electorate a better deal by switching parties went a long way to ameliorating the defection.

The strength and stability of the relevant political parties was a large factor in determining the occurrence of floor crossing. Floor crossing seemed less likely to occur in countries with well-established and stable party systems and more likely to occur in a country such as Lesotho where the multi party system was weak and unstable and where there was a tendency for floor crossing to escalate just before election times. In these cases floor crossing further undermined an already weak party system and compounded the instability. However, the impact of floor crossing on the political party also varied considerably from one country to another. In Kenya, Malawi and Lesotho floor crossing tended to undermine the ruling political party, whereas in South Africa, for example, floor crossing had worked in favour of the ruling party.

It was not easy to draw comparisons between South Africa and other political dispensations. While comparison was always useful in terms of lessons learnt and identifying good practices, the applicable context of other countries was vital.

Discussion
The Chairperson  thanked the presenters and summarised that there was no common thread in the world in terms of democracy. In advanced democracies it happened very rarely. Voter allegiance would sometimes be with the political party, sometimes with the individual. Floor crossing could happen easily with constituency-based elections, where people voted for an individual rather than a political party. In South Africa the question of whether the seat was left or taken on crossing became very complex. Impact on the parties, multiplicity of parties, and the positive or negative effects all played different roles in different situations. She stressed that the issue of voter sentiment was critical. She referred to the road show where none of the voters that responded were happy with floor crossing. She said that this Committee would have to study and seriously consider the electoral system bill proposal before it, and examine the electoral system in conjunction with floor crossing.

Ms I Mars (IFP) agreed the Chair had touched on most issues. She was grateful that the issues raised embraced the delicate issue of the voters.

Ms S Rajbally felt it was quite clear the committee should also be looking at the Constitution and comparing the votes and the electorate. She queried if politicians were being truly honest to the public when they crossed the floor. It was necessary to examine the issue very carefully as it was unlikely that a party would be happy to say they supported floor crossing, because it would definitely affect that political party and their members.

Mr Mshudulu believed that the challenge related also to a broader principle. The committee had not yet analysed the situation in order to ensure stability. The point raised was also relevant to the fundamental principles of the environment in which the Committee operated. He suggested going over the document and mapping out the middle route.

The Chairperson noted that in different democracies floor crossing tended to benefit the opposition or the ruling party. This Committee could not accept or reject floor crossing but she suggested that the parliamentary programme be rescheduled to meet on Fridays as from the following week to consider this issue carefully with a view to reaching a solution in the second half of the year. All political parties, in the interests of democracy, must examine critically whether floor crossing did justice to Parliament and to democracy.

Mr H Bekker (IFP) agreed with this proposal as a way forward. He was grateful for the comparisons, particularly since Lesotho had displayed a tendency of benefiting the opposition, giving unexpected results from the floor-crossing. He reminded members to look at where and how the concept had emanated, namely due to Parliament’s crisis on the opposition side. The committee should view it from a multi party approach. The IFP’s position was clear; it had always been opposed to floor crossing. He agreed that everyone should be open-minded and seconded the Chair’s proposal.

Mr Mshudulu referred to the issue of coalition and its impact in terms of the ballot. If one party was in coalition, it should not be mechanical about it the next time. He asked whether it could not change from Party A to Party B without dissolving Parliament.

The Chairperson asked Members also to consider whether Parliament was delivering on the principles set out in the Constitution, whether it was adding to the mandate, and whether issues such as floor crossing were assisting it in its mandate. She asked that they must identify issues threatening democracy and the multi party system. She asked members to be open and true to democracy and to Parliament.

Adoption of Minutes
The Minutes of the previous meeting were adopted.

The meeting adjourned.