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Meeting reportPRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
and HOME AFFAIRS PORTFOLIO COMMITTEE
06 November 2007
FLOOR CROSSING & WORK OF INDEPENDENT ELECTORAL COMMISSION: BRIEFING
Chairperson: Mr H Chauke (ANC)
Documents handed out:
Independent Electoral Commission Briefing on Floor Crossing and International Work Presentation
Briefing to the Portfolio Committee Home Affairs: Minister’s Availability
Crossing the SA – Botswana Boarder – Wish we could do better
Audio recording of meeting
The Standing Committee on Private Member’s Legislative Proposals and the Portfolio Committee on Home Affairs met jointly to hear a briefing from the Independent Electoral Commission (IEC) on floor crossing. Each Committee gave a brief background to its work around the issue, and the IEC briefed Members on the background to floor crossing, the previous work around the issue and the suggestions made at the recent conference. The diverse views expressed at the conference were outlined. Concerns included questions of voter support, the right of recall, the terms of office, the allowances, amendment of regulations, and provision of sanctions for irregularities. The main question was the effect of floor crossing on democratic principles. Members in this meeting expressed divergent views, some holding that political parties should not come into existence other than through the ballot box, some stating that the rights of individual MPs and the electorate must be balanced, and others holding that it would be incorrect for an MP to stay with a party whose views no longer accorded with his own. It was noted that the Standing Committee had commissioned a survey on the views of the electorate. The Chairperson of this Committee proposed the time frame of March or April 2008 for conclusion of the matter. It was agreed in principle that the two committees and the IEC would attempt to speed up the process and put its proposal to Parliament in due course.
The IEC then briefed the Home Affairs Committee on its international work and activities. Although it was already undertaking international work, this was being done under the broadest interpretation of its mandate. It suggested that perhaps there was a need to amend the legislation to regularise the position, and it was agreed that the matter would be discussed by the Committee shortly.
The Chairperson noted that the Minister would only be available to meet with the Committee on a Wednesday, which was not a normal meeting day. Although there was unhappiness with this it was agreed that attempts be made to find a suitable time and venue.
Independent Electoral Commission Briefings
The Chairperson welcomed the Deputy Minister of Home Affairs, Malusi Gigaba.
The Chairperson asked members to reflect on Section 90 of the Constitution and the establishment of the Independent Electoral Commission (IEC). The Department of Home Affairs (DHA) was concerned with implementing the Electoral Act that governed elections in the country. It would be interacting and reporting to Parliament through the Portfolio Committee on Home Affairs. At the same time the Standing Committee on Private Members’ Legislative Proposals and Special Petitions had also been dealing with electoral issues, as a result of a private member’s proposal. During the past few weeks several engagements had taken place between the IEC, DHA, representatives of the three arms of government and other stakeholders.
After Ms P Mentor, Chairperson of the Private Members’ Legislative Proposals Committee had raised some concerns with Mr Chauke after a televised broadcast in which certain statements were made on floor crossing by the CEO of the IEC. The two committees therefore engaged with the IEC on the issue of floor crossing and agreed that IEC would be asked to brief the two committees on their engagement with the issue of floor crossing, so they could reflect on the structures that were in place, and how they were functioning, to discover what issues still needed to be covered or if there was a need for amending legislation. During that meeting it was agreed between the Chairpersons that any concerns arising from the private Member’s legislative proposal to disallow floor crossing (van der Merwe’s proposal) could also be aired.
Mr Chauke noted that the IEC would be given an opportunity to respond on the televised statements and bring anything else to the attention of Parliament. It had been observed through engagement with the IEC that it now had a global image and was called upon to move all over the world to help with issues of elections, and of deepening democracies in problematic areas that were problematic. This was an open meeting engaging around the presentation and concerns members raised.
Dr Brigalia Bam, Chief Electoral Officer, IEC, introduced her delegation from the IEC. She noted that four years ago there had been meetings between the IEC and Members of Parliament on the issue of floor crossing. The presentation would also cover the recent conference and the link between that conference and floor crossing.
Commissioner Fanie van der Merwe, Deputy Chairperson, IEC, noted that both the interim and final Constitutions had adopted the electoral system for national government whereby voters would vote for a party, not an individual candidate. The political party was then allocated the number of seats proportional to the percentage of total votes placed. The seats allocated to the party were then filled from the party’s lists and the occupants would vacate their seats if they ceased to be members of the party to which the seat was allocated.
In 2002 the floor crossing legislation was introduced. This allowed a member, during a window period every two years, to cross the floor and join another party without losing his seat. In addition, that person would then “take” his seat to the other party.
The IEC, in terms of its mandate, was obliged to regularly review electoral legislation and proposed legislation, and make recommendations. IEC had made written and verbal submissions to the committee dealing with floor crossing in 2002. It had been generally opposed to that kind of legislation, but once the legislation was passed, the IEC had to accept the Act and support the administration of it. When party political issues intervened, the IEC simply respected the Act and could not take sides. In his personal capacity he had suggested that this type of legislation could be justified as a transitional measure to facilitate the inevitable regrouping of political forces. In May 2007 the President stated that the Executive could not any longer deal with this issue, and requested parliament to review and reconsider it. The IEC had already prepared a submission in anticipation of being asked to present it. This dealt with unintended consequences of the legislation. It agreed that this was an issue that could be dealt with by way of a Private Member’s Bill.
Dr Bam commented that Parliament had very generously allowed three hours of solid debate on the matter. That quality time was appreciated because of the nature of the issues.
Adv Pansy Tlakula, CEO, IEC, stated that one of the topics at the conference to commemorate ten years of existence of the IEC was floor crossing. All political parties in Parliament were represented at that conference. One view was that floor crossing should be abolished. Another view was that floor crossing should only be allowed for ward candidates. Yet another view was that there should only be allowance made for councillors or members to cross to parties already represented either in Parliament, in the provincial legislature or in Council. A further view was parties formed as a result of floor crossing must receive voter support. Still more views were that there must be a right of recall; the terms of office were debated; or that the Commission should be empowered to amend the regulations relating to floor crossing. Finally there was an interesting suggestion that the Electoral Court should be given powers of jurisdiction to impose sanctions in respect of irregularities arising from floor crossing.
Members asked a number of questions, and the IEC then attempted to address the issues raised in broad detail.
Mr F Beukman (ANC) asked about transitional arrangements. He wondered if the IEC should deal with these matters holistically, or on a piecemeal basis.
Mr C Lowe (DA) said that at the recent multi-stakeholders conference, which was very useful, he had been surprised to see that the strongest anti-floor crossing views were coming from parties that had themselves been born of floor crossing.
Adv P Swart (DA) noted that a submission had already been prepared, and he presumed that this would set out the arguments for and against floor crossing. From a private member’s perspective, he would like to hear views. He therefore wondered if the IEC was, at this stage, ready to voice an opinion as to whether the floor crossing legislation should be repealed. In the event that Parliament should decide to retain the principle of floor crossing, he asked if IEC had any specific opinions regarding the threshold, and in particular the fact that a member moving from one party to another would not only be taking his seat but also the finances allocated to his original party to whom he was elected. Adv Swart asked if the IEC was able to express an opinion on any possible options.
Mr M Sibande (ANC) said it was alleged that during the window period some parties were suspending their members. A wrong perception was created that the IEC was doing nothing about that.
Mr M Sikakane (ANC) noted that legislation could only be opposed in Parliament. He noted that in the presentation mention had been made of the fact that during the window period no party could, without written consent of the Councillor, suspend or terminate membership of that Councillor. He wondered what would happen in a situation where clearly the councillor had violated the rules of that party but refused to give consent.
A Member asked for clarity on reasons for the unsuccessful crossing.
A Member asked if IEC had sufficient time to explain the procedure to individuals who wished to air their grievances through the court.
Ms S Rajbally (MF) maintained that floor crossing made a mockery of democracy. The President made it very clear that Parliament had to take a decision on floor crossing. The IEC’s guidance was appreciated. Members should take the matter quickly to its logical conclusion of having the matter debated in parliament.
Mr Chauke responded that Parliament had made this law. IEC was busy reviewing the relative legislation and at some point there must be agreement as to what the role of Parliament was. Parliament, whether the legislation was good or bad, would have to debate it, and the same applied to floor crossing. There would still be some realignment of individuals. Many other democracies – even those not as young as South Africa – were going through similar problems. Some believed that floor crossing was to be tolerated, some felt a strong stance was needed. It was up to this Committee to hear what the resolution of the conferences was, and to debate the recommendations.
Mr H Bekker (IFP) explained that the position of the Private Members Legislative Proposals committee. Mr van der Merwe, the proposer from the IFP, had submitted draft legislation by way of his proposal. However, in the attempts to find a middle ground and a way forward, he had then been prepared to deviate from his initial proposal. The only clear consensus from his Committee thus far was that in the event that floor crossing should remain, then all parties agreed that the threshold o 10% must be re-examined. The views were also expressed that a person could cross the floor only to join an existing political party, but not to start a new party; that there should not be a financial benefit; and that the quarterly payments from the IEC should be commensurate with the position before the floor crossing before so that his old party did not lose its allowance. The Private Member’s position needed to be respected and protected, but he confirmed that all parties were concerned to deal with the matter in an amicable, positive, and constructive way.
Mr W Skhosana (ANC) noted that more than one hundred parties were registered with the IEC, yet only about twenty parties responded on this matter. He wondered if the parties, having been registered in 1993, would have to be re-registered each term.
Dr Bam stressed that the IEC respected the principle of individual rights, as set out and protected by the Constitution. The IEC understood that it would have to implement any decision made by the Constitutional Court and the decisions made by this House.
Dr Bam noted that the IEC was consulted and gave advice based mainly on what the voters had to say during interactions with them. It worked with political parties and had a system representing all parties in South Africa (the PLC) and in these meetings of political parties there was substantial discussion and dialogue on a number of issues. She noted that defection of politicians to other parties was not unique to South Africa. Where the South African situation differed was the principle that an MP was in Parliament because his party had put him there. A further problem was that under the current system the party’s allocation would move with the individual.
Dr Bam commented that IEC was searching for whatever was valuable to strengthen South Africa’s young democracy. Perhaps researchers could find value in floor crossing because it made it possible for individuals to follow the ideology they liked best. The major difference between the “old” democracies in the world and the “new” (of which South Africa was prime) was that the world focused on every happening in a new democracy. Fraud issues in South Africa would be widely reported, whereas those in England or Italy or America would not. The IEC was one of the leading Electoral Commissions in the world. Perceptions played a very important role; IEC had to protect not only its own image of the Institution but the image of this nation.
Dr Bam said that countries found it very difficult to make decisions on changing electoral systems. The next window period would be in 2009, the election year, and there would also in this year be questions of succession.
The Deputy Chairperson responded to the question as to whether this issue was transitional or permanent. IEC had been told, at the time of the negotiations, that the issue was left open due to lack of agreement on the principle of whether there should be floor crossing. At the time it was felt that leaving the issue open would help people settle in terms of their political realignment, so perhaps Parliament would have to apply its mind whether this was still happening. IEC had noted, particularly at municipal level, that there was still movement from one party to another. It was further noted that currently a prime question in making the decision to move seemed to be how much money would be transferred across to the new party.
The function of the IEC as a Chapter Nine Institution was to support democracy and it would be failing in its responsibility if it did not offer an opinion on matters that the IEC felt were impacting on our Constitutional democracy.
Ms P Mentor (ANC) was asked by the Chairperson to make an input. She appreciated having this joint meeting. The engagement with the IEC had begun when a comment was picked up arising from the meeting in Mafokeng, which was of great interest to her Committee, which was at the time considering the Private Member’s proposal. There had been amicable exchanges and the Committee thought it would be inappropriate for the Committee and IEC to communicate with each other through the media. The correspondence with the IEC had been very helpful as it gave the context. She added that her Committee had commissioned a survey to gauge the views of the electorate on floor crossing and hoped the IEC would agree that was the right thing to do.
Members of her Committee had doubted whether floor crossing strengthened democracy. They had lamented the fact that political parties came into existence other than through the ballot box. Comments from the ANC Policy Conference in June had been expressed that the ruling party seemed to be disenchanted with floor crossing. However, it was important to hear the views of the entire electorate.
Commissioner van der Merwe addressed the issue whether Parliament should deal with the issue of floor crossing in isolation, or whether Parliament should rather wait until it could deal with the whole issue of the electoral system. He noted that he had been a Member of the van Zyl Slabbert task group (wrongly referred to as a commission) that had been asked to discover what would be the best and preferred system for the 2004 elections. Provision had been made that the 1994 and 1999 elections must follow the same route, but a new system should be agreed upon for 2000. There had been a draft submission by the majority of that task group and a draft submitted by the minority.
Adv Tlakula highlighted some of the issues encountered with floor crossing. The IEC administered floor crossing in the same way as it ran elections, but it was a difficult process. No matter how many or how few crossed the floor, the process was becoming more difficult, especially in view of legal challenges. In relation to the question on expelling members during the floor crossing, she explained that parties would in fact expel members only before the window period, and that created its own disputes as to whether the parties were expelled or suspended. There were several such cases on the table. In terms of the law and the delegation given to the Commission, the Chief Electoral Officer administered floor crossing.
Mr Michael Hendrickse, Project Manager, IEC, clarified the specific matter raised, when a party representative had wished to become independent. Independent status applied only to ward councillors, and the floor crossing had failed as it was not legally competent.
Mr Hendrickse clarified that in terms of the Electoral Commission Act a party that was not represented in any sphere of government had to renew its registration by the end of January each year, by indicating to the IEC that it was still in existence. Many parties had not done so and were therefore deregistered by the Commission. A further provision of the Act provided that if a party had not participated in an election, the IEC could ask for reasons. Some parties would not participate in local government elections but only in national. If there was no response the IEC could deregister that party. There was an annual process to check which political parties were active.
The Chairperson asked whether all parties received funding.
Mr Hendrickse responded that the only parties that received funding were parties represented in the National Assembly and provincial legislature.
Mr Hendrickse added that after the election the formula approved by Parliament was then applied to the political parties, to determine the amount that was given to parties quarterly. At the end of the financial year the parties would have to account for how they had spent the particular funding.
Mr Hendrickse elaborated further on disciplinary action during the window period. Normally, if a political party expelled a member, he would automatically lose his seat. In terms of the Municipal Structures Act the Municipal Manager must, within seven days, notify the IEC of the vacancy, which would then be filled by the IEC. During the window period, before the floor crossing, the IEC held workshops around the country with committees and other stakeholders to advise that during the window period it was not possible to suspend or expel members. Knowing of this, parties would often summarily expel their members just before the window period, and this was often challenged in court.
A Member felt that the individual’s rights were interwoven with democracy, and believed that floor crossing was correct and justifiable because it would give the individual the right to move to a party that accorded with his principles. He asked what was meant by the floor-crosser moving with money, as he had understood a party was given an amount proportionate to the number of members.
Adv Swart responded that if there was to be a debate on individual rights then it was also important for the IEC to give some indication about the right of the party and the electorate. Whilst it might be noble for an individual to abandon his party if that party did not agree with his principles, he asked about the collective rights of the electorate, who had voted for a specific party with the intention of putting an MP in place to do a specific job for five years. The defection of an MP to party in opposition to his original party was going against the conscious wish of the electorate. There was a need to balance the rights
Another Member asked how council could expel a member of a different party.
Ms N Mathibela (ANC) asked what the situation was when a person would cross the floor to form a new party, and whether this implied that he had persuaded others to move with him.
The Chairperson said that when floor crossing was implemented first, it was intended to deepen democracy. However, it was clear that differing views now existed, and so this Committee was considering how the committee should now move on this engagement. The President had made a pronouncement that Parliament must deal with this issue of floor crossing. The IEC had done its work and had confirmed in this meeting that there were now area reports, so the question was how to move forward. The issue was particularly current in the Western Cape. He noted that the Committee had not yet engaged fully on the report from the ad hoc Committee that had considered the Chapter 9 institutions.
Ms Mentor noted that her Committee believed that there was no proof that floor crossing strengthened democracy. Members had identified certain problems. The first was that the Constitution had designed South Africa to be a multi party democracy, born out of elections. There was now a multiplicity of parties that were growing not in terms of the elections as the Constitution had envisaged. Secondly the PR system was a problem. Her Committee had commissioned research by the Research Unit of Parliament. This had looked at two advanced democracies, two emerging democracies and two mid-way democracies, being Canada and the UK; Russia, Brazil, Kenya and Lesotho, because the committee wanted to benchmark itself in terms of emerging democracies. Russia had abolished floor crossing. Brazil also ruled out floor crossing recently. The Canadian democracy was well established, being more than 200 years old. Canada and the United Kingdom had put mechanisms into place where floor crossing was not as free or as frequent. There were instances where they had to go and re-test the electorate, which was not the case with our law.
Ms Mentoor noted further that whereas the intentions were good for floor crossing, there were difficulties. There were problems with the threshold, which benefited the very large and very small parties, yet inconvenienced those in the middle. Other issues that made the issue unpalatable for the electorate – questions of morality, buying, lobbying and so on -must be dealt with.
Mr Hendrickse thought the irony of the whole debate was that floor crossing was in fact outlawed, except for the fourteen-day window period, and the question was whether to continue with that or maintain that floor crossing should not be allowed at all. The intensity of activity in the Western Cape was directly related to the fact that there were only four municipalities that had an outright majority to form a government, two of which were governed by the DA and two by the ANC. All other municipalities were governed by coalition, so one or two votes suddenly made all the difference. Politics was all about gaining power. The window of floor crossing created an opportunity for parties to gain or maintain power in finely-balanced Councils.
Mr Hendrickse noted that in the Western Cape there were three workshops in preparation for the floor crossing. It was surprising to learn how little those people who wanted to cross the floor knew about floor crossing. He said that in the IEC no forms were entertained at local or provincial offices. He agreed that the fundamental question was whether the floor crossing legislation made for better democracy. The institutions and the legislation was often good and sound, but problems could arise with individual interest operating within those frameworks.
The Chairperson summarised the way forward. The two Committees would propose that a platform be created for the IEC to table its report on the conference in Parliament. The information emanating from the Private Member’s proposal and special petitions should be shared. It was noted that the administration of floor crossing was done at the three levels of local, provincial and national level, and these Committees must reflect how to bring the national and provincial floor crossing in line. Whatever these committees would be doing did not of course preclude political parties from engaging separately in debating the issue to enable them to make input at a Parliamentary level. It was noted that the IEC was already starting to prepare for the next elections.
Ms Mentor added that because the IEC was neutral, its input was really appreciated and she would want it to be at the centre of mapping the best way forward for South Africa and its democracy. The Private Members’ Portfolio Committee was hoping to bring this matter to closure by March or April 2008, having been prepared to hold it in abeyance until after the June ANC policy conference. The survey was being commissioned.
The Chairperson noted that the time frame would have to be finally decided between himself, Ms Mentor and the IEC, but it was understood that in principle the process should go speedily.
Adv Tlakula noted that the court case in Malawi was very interesting.
Members of the Private Members Legislative Proposals and Special Petitions committee left at this stage.
International Work of the IEC
Ms Tlakula proceeded to briefly explain the international work of the IEC. The IEC was often asked on what basis it undertook international work, because there was no provision for it in the law. Therefore the issue was raised because at some stage Parliament might well be called upon to pass amending legislation to extend the functions officially, as also deal with elections that were run for other organisations. IEC was called upon by universities, trade unions, pension funds and other organisations to run elections for them. It did so because of its mandate of strengthening Constitutional democracy and democratic electoral processes enabled it to perform that function, although this was an expansive interpretation of the law, which mandated the IEC to run elections at National, Provincial and Local Government levels.
A Member asked if the IEC was ready for 2009 or if there were any issues to be raised.
Adv Tlakula responded that the delays at the moment related to the direction in which the Smart Card system would be going, which would in turn determine the kind of equipment to be procured. IEC had meetings with DHA, the tender had been advertised and the process was ongoing. Both the current ID documents and the new Smart Card would be able to be used.
The question was also raised why the law would need to be amended when the matter could probably be dealt with in another way.
Adv Tlakula responded that IEC was considering all options. This issue was also raised during the review of the Chapter Nine Institutions. At this stage she was notifying the Committee that there were some options that they would be asked to consider.
The question was asked how the international work would affect the mandate of the IEC.
Adv Tlakula replied that it would generally not impact, as when taking the decision to deploy staff the work load would be taken into consideration. What had impacted more was the shortage of staff; last time the IEC had addressed this committee there were about 38 vacancies.
Mr Chauke noted that this point had been raised before and recommendations were made in the Committee’s Report that the IEC needed more resources. He commented that the IEC must be very clear on its mandate, because if it was doing work outside the mandate and undertake international obligations then the question arose what resources were being used. It was an issue of how the budget allocations were being spent. He proposed that the Committee must again consider this matter, so that it could make recommendations to Parliament.
Minister’s Availability to brief the Committee
The Chairperson noted that the Minister had been asked to give a date when she would be available to address the Committee on a number of issues. Correspondence now proposed that the meeting be held the following Wednesday.
Mr C Lowe (DA) noted that the Minister had been unable to attend two meetings, and this date proposed was a day on which this Committee did not usually meet. He thought that perhaps the Minister could accommodate the Committee and that she be asked to meet with them on a Tuesday.
A Member noted that if Members were worried about her availability, perhaps they could compromise, otherwise the matter must stand over until next year.
Ms I Mars (IFP) wished to register her protest, noting that meetings of this Committee were set for Tuesday, and Members had other committees to attend on Wednesday.
Another Member made the point that the Minister knew of the Committee’s timetable and that an overlap with other committees would be a serious problem.
A Member noted that the Minister had been abroad on the other two dates, and had also to attend a government Imbizo, so that she clearly had been unable to attend. He appealed to Members to try to be accommodating.
The Chairperson noted that there was a practical problem with the Committee Section, since Wednesday was not this Committee’s slot and there were no venues. He understood the problems of Members.
The Committee Secretary explained that after she received this letter from the Minister’s office she had tried to set up a venue, but none were available, and plenary times precluded a meeting after lunch. She could apply for permission to sit outside Parliament.
The Chairperson said that he would like to try to accommodate the Minister and he proposed that he should convey to the Minister that there were some difficulties, but perhaps the meeting be arranged for 18h00,and the venue would be dealt with separately.
Mr Lowe agreed that it was very important to have the meeting and under the circumstances Members really had no choice. However, he would like to place on record that this committee had an oversight function over the Executive, and he believed it was untenable for the Minister to act in this way.
Members agreed that the Committee should try to meet with the Minister at 6 pm the following Wednesday. .
The meeting was adjourned.