Electoral Amendment (Private Member's) Bill: briefing by proposer James Selfe

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18 June 2013
Chairperson: Mr A Gaum (ANC
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Meeting Summary

Mr James Selfe presented his private Member’s Electoral Amendment Bill, which sought to change South Africa’s electoral system from one based on proportional representation (PR) and fixed lists, to a mixed system. He noted that this was similar to a system proposed by the Slabbert Commission in 2003 and to one mooted by the 2009 Independent Panel of Assessment of Parliament, which would attempt to capture the benefits of both the constituency-based and proportional representation electoral system. The advantages and disadvantages of the systems were outlined. The PR system had advantages of being easy to understand, perceived as widely fair and representative of the will of voters, and being largely immune to manipulation. However, it also had weaknesses, most notably the lack of accountability to voters, who often did not know who “their” MP was, and no sense of personal connection between voters and parliamentarians, which led to disengagement, cynicism, and low voter turn-out. Ward Councillors or those who were elected directly by voters had a greater status in constituencies. The Constituency system, on the other hand, established a direct link between one MP and his or her constituents. The disadvantages of this system were that it was possible to have a member elected with less than 50% of the vote, and it was not in compliance with section 46(1)(d) of the Constitution that specifically referred to “proportional representation”. For these reasons, a “mixed system” was therefore proposed, whereby 100 constituencies would be represented by three MPs elected by proportional representation, filling the first 300 seats in the National Assembly (NA). A “top-up” of 100 seats would be allocated so that the overall composition of the NA reflected the proportion of votes cast by the electorate for parties as closely as possible. This proposal would apply only to the national legislature. Absent and special voters (including inmates of correctional centres) would be guaranteed opportunities to vote.

Members The Members were primarily concerned that proportionality would be compromised under the proposed system. They asked if smaller parties would be excluded through this system, and expressed concern that supporters of the smaller parties may feel that there was no point in participating because their party did not stand a chance of winning. They wondered if proper proportionality could be better achieved if there were 200 top up seats rather than 100, although some made the point that the numbers made little difference and it was accountability and work done that were the main issues. Some Members felt that the electoral system itself could not ensure accountability; this could only be done by the political parties. Others thought that the proposed system was too complicated and potentially confusing for voters. They were worried that the  constituencies would be very large, which would reduce the voter-to-MP contact, instead of promoting it. Members asked if the Independent Electoral Commission (IEC) could comment on how practical this model was to achieve, particularly for South Africans living aboard, and on the implications of clause 3(c), which related to voting of inmates, as also whether there would be differences experienced between urban and rural voters. However, since the IEC was attending this meeting as an observer, it was decided that its opinion and comment be deferred to a subsequent meeting, to allow the IEC, and Members, to reflect further on the proposals. Members also pointed out that there was no costing, but the proposer said that he did not imagine that the cost would be substantially different from the running of municipal elections. They further asked for details on how exactly the MPs would campaign, whether there would be individual posters, and whether the voters would not be confused at the ballot box. 

Meeting report

Private Member’s Bill: Electoral Amendment Bill: proposed by James Selfe
Mr James Selfe, MP, thanked the Committee for the opportunity to present his private member’s Bill, and congratulated the Committee Researcher on the excellent background research he had done, which was contained in a report circulated to members (but not made available during the meeting). The Researcher’s report had outlined some of the dilemnas surrounding the choice of electoral system, which were particularly valid for South Africa’s young democracy.

Mr Selfe’s Electoral Amendment Bill was introduced against a background of South Africa’s proportional representation (PR) and fixed-list system. The 400 members in the National Assembly (NA) were allocated according to the exact proportion of votes that parties obtained in the election. Each party had a ranked list, to determine which of its candidates were elected to the NA.

Mr Selfe noted that the PR system had undoubted advantages. It was easy to understand and widely perceived to be fair, it was said to almost exactly reflect the will of the voters, it was substantially inclusive of small parties, and it was substantially immune to manipulation. At the same time it did have undoubted weaknesses. The most significant of these was the lack of accountability to the voters. South Africans often did not know who "their" Member of Parliament (MP) was, which led to disengagement, cynicism, and low voter turn-out. There was no sense of personal connection between the voters and their MPs. MPs had no particular rights or entitlements to do work in their constituencies, other than being a member of the National Assembly. Ward Councillors or those who were elected directly by voters had a greater status in constituencies.

Accountability would be clearly better achieved by a constituency system, where there was a direct link between a single MP and his or her constituents, such as was the case in the United Kingdom, and which had existed in pre-democratic South Africa. However, this too had its disadvantages. It was possible under this system for a member to be elected with less than 50% of the vote. In addition, the Constitution of South Africa stated, in section 46(1), that “The National Assembly consists of no fewer than 350 and no more than 400 women and men elected in terms of an electoral system that… (d) results, in general, in proportional representation.”

Any constituency system would have to conform to this prescription. A pure single-member constituency system was highly unlikely to result in proportional representation. Accordingly there would need to be a “mixed system” of constituencies and a list, in order to guarantee proportionality. There were various different ways in which this could be achieved.

The Slabbert Commission of 2003 suggested 69 multi-member constituencies, who would  return between three and seven members each, electing 300 MPs in total. A further 100 representatives would be “allocated from national lists to restore overall proportionality”. Both constituency and national lists would be closed, so that the parties would determine the order of candidates to be elected. This Commission had suggested transitional arrangements for the 2004 elections, in which there would be 200 MPs from nine provincial “constituencies” and 200 MPs from national lists.

In 2009 the Independent Panel of Assessment of Parliament, chaired by Pregs Govender, which also included current Speaker, Max Sisulu, took the view that the current electoral system should be replaced by a mixed system which attempted to capture the benefits of both the constituency-based and proportional representation electoral system.

The system used for municipal elections was similar to that used in some countries, such as Germany, for national elections. The Municipal Structures Act (1998) provided for same number of ward and list councillors. It would be possible to use a similar 200/200 system for the National Assembly. However, there were a number of problems with this. Constituencies would consist of around 118 275 voters, which was too large a number of voters to service effectively. It would be very difficult to achieve overall proportionality, as required by the Constitution, and might lead to the exclusion of minority parties that enjoyed neither geographic concentration of support nor the required threshold of support to guarantee the election of list candidates.

The Electoral Amendment Bill sought to achieve what the Slabbert Commission had called “core values of fairness, inclusiveness and simplicity”. The Bill proposed 100 constituencies, each to be represented by three MPs elected by proportional representation, thereby filling the first 300 seats in the National Assembly. A “top-up” of 100 seats would be allocated so that the overall composition of the National Assembly reflected the proportion of votes cast by the electorate for parties as closely as possible.

Mr Selfe illustrated how this would work in practice, using the number of registered voters for the 2011 Local Government Election as an example.

He then described the election process. The Electoral Commission would demarcate constituencies, as it did voting districts at the time. Each constituency would have substantially the same number of voters and would not be allowed to straddle provincial boundaries. Every party contesting constituencies would submit a list of names of five candidates, in ranked order, for that constituency. These names and the logo of the party would appear on the ballot paper for that constituency, but voters would still vote for a party.

The MPs from a constituency would be elected using the same PR system that was used at the time to elect the regional list MPs. If a casual vacancy occurred in a constituency, it would be filled by the next person on that party’s list for the constituency. Once the 300 MPs from constituencies had been elected, the Electoral Commission would allocate 100 MPs from national lists submitted by parties so that the overall composition of the National Assembly reflected the proportions of votes cast for each party.

Mr Selfe’s Bill did not propose that this should apply to the provincial legislature, as it was felt that this was best regulated in provincial constitutions. Some provinces had minimum numbers of Members of Provincial Legislature (MPLs) (30) which made the applications of quotas complicated. This would mean that the constituencies for the Provincial Legislature would be different from the National Assembly, leading to confusion. Despite this, a discussion could be held at the level of the National Council of Provinces (NCOP), to see if there was a way around these difficulties.

Mr Selfe dealt with the question of absent and special voters, noting that his proposals allowed eligible South Africans living abroad to register as voters at embassies and consulates, and for registered voters who knew that they would be absent from their voting districts to apply in advance for special votes for both the National Assembly and the Provincial Legislature. This applied to voters inside and outside South Africa. It obliged the Electoral Commission to establish temporary voting stations at locations overseas where more than 500 valid applications for special votes have been received.

Discussion
Mr P Groenewald (FF+) said that the proposal created a proportional system within a proportional system. It was trying to ensure that there was greater accountability. However, accountability was only one aspect of electoral systems. He was of the opinion that the electoral system itself could not ensure accountability, and this could only be done by the political parties. The constituencies would consist of about 200 000 voters, with three members elected. This meant that 300 seats would be distributed amongst the three largest political parties, and only 100 representatives would be elected from the PR system. He wondered if the calculation was being made to ensure that smaller parties would be represented. He asked that the mathematics be explained.

Mr M De Freitas (DA) said that there was public debate on the issue, and the public felt that their representatives were not close enough to the ground. Change was needed. The 100 seats that would be allocated on the basis of proportional representation would ensure that the spirit of proportionality would be maintained. He felt that the competition between the three representatives for each constituency would encourage better relationships with voters.

The Acting Chairperson was concerned that this system would not maintain the multi-party system, but would instead encourage the dominance of two or three parties. Under the current system, if a party got only 1% of the vote it would have 1% of the 400 seats in the NA. Under the proposed system, it would only get 1% of 100 seats. It would be difficult, under the municipal system, to achieve proportionality as stipulated in the Constitution. He questioned whether proper proportionality could not be better achieved if there were 200 top up seats, rather than 100. He was concerned that this model might lead to the exclusion of minority parties.

The Acting Chairperson referred to Mr Groenewald’s comment that the proposed model was a “PR system within a PR system”, and said that if so, this could be very confusing for voters. In addition, the voter would only see a proportional list when at the voting station, as other than that the association would be with the party. He questioned if this would really solve the accountability problem.

The Acting Chairperson asked the Independent Electoral Commission (IEC) to comment on how practical to achieve this model would be, particularly for South Africans living abroad. He also wanted comment on the implications of Clause 3(c) of the Bill, which dealt with the voting of correctional centre inmates. Finally, he wondered what differences would be experienced for urban voters as opposed to rural voters?.

Mr Selfe responded that the mathematics would work in the same way as was currently applied to Municipal Councillors. If a party got a particular number of wards, the proportion was calculated, and if it got 'too many' representatives in the wards, it got fewer representatives from the list. This would reflect the will of the voters as closely as possible. It was possible that some parties would not make the cut. If a party got 1% of the vote under the current system, this would mean it would hold four seats in the NA. If the party did not get any constituencies then it would get four seats from the list.

There were many PR systems with thresholds, such as Germany. This Bill did not propose thresholds because it was intended to be as proportional as possible. There was a trade-off between accountability and proportionality, but the trade-off was made with the utmost possible respect to the spirit of the Constitution. It was attractive to use a bigger list, therefore making the system more proportional. This would however run the risk of large constituencies, which would weaken the accountability of the system. One solution to this could be to enlarge the NA, but this would require a Constitutional amendment.

Mr Selfe explained that it was assumed that under the proposed system candidates would actively campaign to ensure their own individual success, which would make voters more aware of the individual personalities who were running. At least in this system, even if voters only found out at the ballot box who was running, there would be some awareness. In addition, parties would choose candidates who were likely to maximise the number of votes received in that area. Those selected would therefore be more likely to be from the area, rooted, well-known and connected. Appointing three MPs rather than one was another trade-off made to achieve proportionality.

In regard to  special votes, Mr Selfe said that it was important to avoid having a constituency dominated by those incarcerated. In order to avoid this, correctional centre inmates would register for the area where they had last lived before being imprisoned, and then cast a special vote. As far as the practicality of the provincial vote for South Africans abroad was concerned, he conceded that there was a difference of opinion between him and the IEC, but the IEC would give its views.

Mr Groenewald asked whether calculations had been made about the cost of the system. He argued that even if a party had five names listed on the ballot, voters would, in practice, still be voting for a political party. All they saw was the names of the candidates. He asked if it was being suggested that campaign posters be put up for every candidate. He suspected this would create confusion. There would be competition amongst candidates to get on the national list, as this would require less work than competing for a constituency. This would increase the power of party bosses and favouritism.

Mr Groenewald agreed that the electorate wanted to make contact with their representatives. With social media, internet, and technology, contact was very different now than it had been in the past, when voters only saw their representatives when they were in the constituency. Accountability happened when the electorate could have an input in law making. The committee system allowed that, and it was an accessible system. The other aspect of accountability was that people would know who their MP was, and go to that individual with specific problems. However, he pointed out that the constituencies were large, which would reduce the voter-to-MP contact, and wondered how Mr Selfe was proposing that this problem be breached. It was possible in the model that one party would get all three seats in one constituency. In this case there would be no competition amongst the MPs that would increase voter to MP contact, as Mr Selfe had suggested.

Mr Groenewald said that there were several points of criteria to consider in an electoral system and accountability of MPs was only one. Considering South Africa's past, the electoral system should be accessible and meaningful. People should feel that their vote made a difference. This was linked to the multi-party system. Under the proposed system, supporters of small parties may feel that there was no point in participating because their party did not stand a chance of winning.

Mr M Mnqasela (DA) also commended the Researcher's report. He said that the Committee should ask itself if the current system was the best system, in all honesty, when recent years had seen uprisings and protests, but some MPs would not even know about these protests in their own constituencies. Some did not even visit their constituencies. Voters were more important than MPs. A change to the electoral system would require education and public participation, so that people knew what was going to happen. He suggested that the Committee approach this proposal with a positive and open-minded attitude. He urged Members not to go into the debate thinking it was a “win or lose” situation, but to be mindful of the challenges and the opportunities. This should be seen as an opportunity to make democracy work better for the voters who had put them into office.

The Chairperson asked for specific questions rather than deliberations.

Ms G Bothman (ANC) asked that the IEC should not be put in the spotlight, as this entity had been invited as observers, and had perhaps not prepared itself to answer questions.

Ms Bothman said it was clear that the emphasis was put on accountability, but to her mind, accountability had nothing to do with the electoral system, but instead had to do with the system in Parliament making members accountable for the work that they did on the ground. If one MP was servicing 100 000 voters it would be impossible for her or him to get to each and every person. She did not see how changing the numbers of people in Parliament would make people accountable. If there were ten people there, and they were not working, then it would not be better than having three. She suggested that there was little point in deliberating the issues further now, but suggested that the meeting adjourn and meet again to hear from the IEC. She also added that the Bill had financial implications, and those particulars had not been presented.

The Acting Chairperson agreed to allow the IEC time to reflect on the questions and give its opinion at the next meeting. He also asked the IEC and Members to apply their minds to the broader implications of the proposed change. Members were still in the process of asking questions, so that would be completed before the meeting was adjourned.

The Acting Chairperson asked Mr Selfe if, given that he had acknowledged that there was a trade-off, he would agree that the proposed system would be less proportional than the current system. Again he emphasised that a party with only 1% of the vote would likely get less seats under the proposed system, and the question arose whether the 100 seats would be enough to ensure proportionality, or whether  200 seats would not ensure that much better. He reiterated that he felt that the model was more complex for the voter than the current system. A threshold was not being introduced outright, but there was a threshold introduced by stealth, because the 1% party would only get 1 seat rather than the 4 it would have enjoyed under the current system.

Mr Groenewald asked for further clarification on the mathematics of the proposal.

Mr Selfe responded that Mr Mnqasela had put his finger on the most important issue. South Africans were very proud of their electoral system, but the question was whether it was indeed the best model in the context of an evolving democracy. He felt that there was room for greater accountability. Voters did not know who their MPs were, which led to alienation from the system. He acknowledged that this was a trade-off, as the most accountable system would be a single member for a single constituency.

At the moment constituencies were huge, as there were nine, with each province effectively being a constituency. Under the proposed model, although the constituencies would still be big, they would at least be smaller than the provinces. He felt his proposals were not that confusing, that voters were not stupid, and should be given the credit for being able to understand the proposals. The proposed system would encourage candidates to go to the voters, making the sort of door-to-door contact that was the essence of a living democracy.

He was aware that there were systems in place from political parties to enhance accountability. Some worked well, but some did not. However, there were two sides to accountability. The first was making sure that an MP did his or her job, which could by done by a party whip or party boss. The other aspect was allowing the MP the access and ability to serve a constituency directly.

In answer to the questions whether the system was more or less proportional, the formula that would be applied would be the same as that applied to provincial constituencies at this time. The number of MPs elected from a regional constituency was determined by a formula, and exactly the same formula could be used nationally. Voters would cast only one vote. The IEC would determine what the proportions were for the political parties, and how many seats they should get according to that proportion. That would then be augmented from the list. The overall composition of the National Assembly should reflect, as closely as possible, the overall will of the voters.

Under the present system there was a threshold. The new threshold that he was proposing would be slightly higher, but this was just quibbling about what constituted an acceptable level of threshold. The system was not all that much more complex, and at least, at the ballot box, voters would know who they were voting for.

Mr Selfe said that any electoral system would be costly, but he did not believe that his proposals would be any more complex or costly than running a municipal election.

He conceded that there were many competing factors, but felt that the proposed system did strike the right balance between representatively and accountability, and had the additional advantage of encouraging greater participation.

The meeting was adjourned.
 

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