IDASA
Political Information & Monitoring Service
Submission
to the Joint Constitutional Review Committee
FLOOR-CROSSING
INTRODUCTION:
The annual
Constitutional Review undertaken by the Parliamentary Joint Constitutional
Review Committee offers an important and timely opportunity for South Africans
to reflect on the bedrock of the rule of law in South Africa, the Constitution
of the Republic. In 2006 the
Parliamentary Review of the Constitution will coincide with celebrating ten
years of democracy in South Africa, framed by the Constitution of 1996. This submission on the part of IDASA aims to
contribute to the debate and review of Floor-Crossing legislated in the
Constitution through the Constitution of the Republic of South Africa Amendment
Act 18 of 2002 and the Constitution of the Republic of South Africa Amendment
Act 21 of 2002.
This debate has
recently been brought into focus by the submission of a Private Members Bill
aimed at scrapping floor-crossing forwarded under the auspices of a number of
opposition parties, and President Thabo Mbeki’s comments in the house that the
“parties in Parliament really should discuss [floor-crossing]” and “say whether
the conditions which necessitated the institution of this legislation... have
changed such as we then need to change the legislation”. Significantly, when asked whether the annual
Parliamentary Constitutional Review might be one means of discussing the
matter, the President responded that “we might want to take advantage of [the
Review] to look at this”[1].
The view that the
Constitutional Review Committee would be the correct forum in which to debate
the matters of the electoral system and floor-crossing was also asserted by
Smuts Ngonyama, the Head of the African National Congress (ANC) Presidency in
2005, when he wrote in the Cape Times that “All floor-crossing and other
electoral legislation is open to the normal Parliamentary review processes…
Should any party or sector of society feel [they are unfair] they should
initiate a review process”[2].
The debate around
floor-crossing is an important one, but one that has largely been framed in
official discourse by political imperatives.
The Constitutional Review Committee offers a forum in which the pros and
cons of the regime, as currently legislated, can be debated in a non-partisan
manner. This submission aims to
contribute to a balanced debate on the subject without fear or favour to any
political party.
South Africa’s
system of democratic, representative governance as framed by our Constitution
is a credible and legitimate system premised on one citizen, one vote. It came to pass after a long period of
anti-colonial and anti-apartheid struggle.
The founding provisions of The Constitution of the Republic of South Africa
(1996) include the values of “Universal adult suffrage, a national common
voters’ roll, regular elections and a multi-party system of government, to
ensure accountability, responsiveness and openness” (Chapter 1, 1(d)). Chapter 3 of the Constitution requires that
all spheres of government must “provide effective, transparent, accountable and
coherent government to the Republic as a whole” (41(c)). Chapters 4, 6 and 7 of the Constitution
prescribe the powers, duties and obligations of the three spheres of government
in relation to ensuring participatory, transparent and accountable
government. These prescriptions include
the obligation on the part of Local Government to “provide democratic and
accountable government for local communities”, and “to encourage the
involvement of community and community organisations in the matters of local
government” (152 (a) and (e)).
This submission
will argue that the system of floor-crossing, as currently legislated in South
Africa, in the context of a electoral system premised on proportional
representation, has had the unintended effect of undermining the spirit of
open, accountable, transparent and participatory democracy as prescribed by the
Constitution of the Republic of South Africa.
The purpose and
effect of the floor-crossing legislation is to permit the defection of members
from the party under whose aegis they were elected, as well as the merger and
subdivision of political parties at all levels of government.
Floor-crossing as
a phenomenon connects to a number of broader, equally complex issues and
debates relating to the principles of “representative”, “accountable” and
“participatory” democracy, as prescribed by the South African Constitution; the
merits of electoral systems (proportional representation, first-past-the-post,
and mixed systems) and their application in a transitional South Africa; and
the accountability of public representatives to their constituents, the voting
public – to name just some of the intersections.
Floor-crossing is
a feature of many so-called “established” and “developing” democracies. But such an observation can not serve as a
justification of the regime, as practised in South Africa, in and of itself. One needs to examine each occurrence of
floor-crossing according to the electoral system within which it is practiced
and, in turn, its institutional manifestation and legal application where it
occurs. This submission will assess
floor-crossing as legislated in South Africa.
Political
Background
After the
formalisation of the Constitution in 1996, floor-crossing was forbidden by the
existence of an anti-defection clause embedded in the Constitution. The clause was included because the South
African electoral system is a purely proportional one, except in local
government where the system is a mix – proportional representation and directly
elected ward councillors. It was felt at the time that permitting
representatives to change parties would disturb the electoral balance chosen by
the electorate.
The issue of
floor-crossing came to a head with the original incarnation of the Democratic
Alliance (Democratic Party + New National Party + Federal Alliance = DA)
thrashed out in mid-2000, under the pressure of the looming local government
elections. Due to the Constitutional
anti-defection clause parties could not legally merge between elections, and as
such the DA negotiations were pushed through in order for the two parental
parties to be able to contest the December elections as one organisation.
Subsequent to the
election the DA existed legally at the local level. At provincial and national level the three
partners, the Democratic Party (DP), Federal Alliance (FA) and New National
Party (NNP), remained legally separate – sitting separately in the
legislatures; receiving separate allocations of public money, etc – but
operated as one entity – caucusing together; voting as one, and so forth. In order for the DA to constitute itself as one
party in these two spheres of government some form of floor-crossing would be
necessary for the respective members to abandon their old incarnations and
embrace their new identity.
Alternatively the founding parties would have to wait for the next national
and provincial poll in 2004 to formalise the relationship through the ballot
box.
A bill to allow
for floor-crossing started as a DA backed initiative. Veteran DP politician
Colin Eglin was among those who as long ago as 1994 had championed
crossing-the-floor traditions and the DA itself in 2001 submitted proposals to
Deputy President Jacob Zuma and the Speaker’s Office on how best to lift the
anti-defection clause.
At this stage the
measure did not find favour with the ANC, as the DA political initiative was
perceived within Alliance circles as the congealing of a race and class-based,
right-wing political opposition[3]. In the aftermath of the NNP’s withdrawal from
the Democratic Alliance in 2001, the political gains potentially accruing to
parties changed, and the ANC, together with the NNP, DA and FA, commonly
foresaw potential gains to be accrued through the promulgation of
floor-crossing legislation. ANC chairman
Mosiuoa Lekota said that the ANC had been discussing the defection as a means
“for some political realignment…and the break-up of racial power blocs”[4].
The NNP leadership
wished to extricate the party from the DA with the explicit intention of
formalising alliances with the ANC at all levels of government. However the NNP
was trapped in an alliance from which it could not legally withdraw until the
2005 elections at the local level.
The DP, NNP and
FA’s initial proposal to circumvent the anti-defection clause, now championed
by the ANC, DP/DA, NNP and FA, instead of formalising the DA at the Provincial
and National level, now had the potential to unravel the DA at the local level
as NNP councillors elected on the DA ballot jumped ship to a reconstituted NNP.
However, the DP continued to support the legislation due to the short term
gains to be accrued at the Provincial and National levels where some
disillusioned NNP representatives continued to promise alignment with the new
DA.
However, the constitutional requirement of proportionality at local
government level meant that the scrapping of the anti-defection clause at this
tier of government would require a constitutional amendment. This raised the
stakes of the whole issue, and brought into sharp focus the alleged political
motivation behind the proposed amendment.
All members of the
NNP and DP were elected to municipal councils as DA councillors and the lifting
of the defection ban for a short period would allow those who wished to leave
the alliance and serve as members of the NNP to do so. The alternative, the
bills proponents argued, would be scores of municipal by-elections across the
country.
Legislative
Background
The politicisation
of the process and the widespread perception in the public that the bill served
the narrow expedient politics of self-serving representatives delayed the
promulgation of the bill in the 2001 Parliamentary term. However in June 2002 three legislative
amendments and one bill were tabled in Parliament to facilitate floor-crossing:
the Constitution of the Republic of South Africa Amendment Act 18 of 2002 (“the
Constitution Amendment Act”); the
Local Government: Municipal Structures Amendment Act 20 of 2002 (“the
Municipal Structures Amendment Act”);
the Constitution of the Republic of South Africa Second Amendment Act 21
of 2002 (“the Constitution Second Amendment Act”); and the Loss or
Retention of Membership of National and Provincial Legislatures Act 22 of 2002
(“the Membership Act”).
The composite laws
stated the following requirements for legal defection:
The result of
defection:
280 (or 86%) of
the 320 members of Parliament present on the day the legislation came before
the House voted in favour of the bills, passing them into law. The legislation was supported by the ANC, DP,
and the NNP.
Constitutional
Court Challenge
The passing of the
four bills in Parliament was followed by an urgent application led by the
United Democratic Movement (UDM) to the Constitutional Court challenging the
constitutional validity of the legislation.
The application (to which Idasa was Amicus Curiae) aimed to have the
legislation set aside. Idasa’s
submission to the court argued that allowing for floor-crossing would undermine
the representation of voters’ interests as communicated through the
proportional representation formula, in turn undermining the Constitutional
principles of participatory and representative democracy. The UDM argued, amongst others that the
legislation compromised the Constitutional requirement that the electoral
system should allow for “in general, proportional representation”. In addition it argued that smaller
parties would be negatively affected by the legislation as it encouraged “cherry-picking”
where larger parties offer more attractive positions to members of smaller
parties and so lure them away from their party.
The Constitutional
Court indicated that it would take a non-interventionist stance in the face of
Constitutional Amendments that have been passed according to proper
procedures. However, the Court held that
there were certain technical deficiencies related to the legislation providing
for floor-crossing at a national and provincial level. This meant that Parliament was required to
redraft such legislation and execute a constitutional amendment. The court
further ruled that the first window period for crossing of the floor at local
government level would go ahead on 8 October 2002.
FLOOR-CROSSING
IN PRACTICE:
2002 Municipal
Floor-Crossing
A total of 555
municipal councillors crossed the floor during the 15-day window between 8 and
23 October 2002. The DA was
disproportionately affected with the loss of 417 councillors to the New
National Party (340), the African National Congress (51), Independents (19),
the Sport Party (2), the Inkatha Freedom Party (1), Phumelela Ratepayers
Association (1), the Potchefstroom Inwonersvereniging (1), the Breedevallei
Onafhanklik (1) and the Universal Party (1).
The NNP gained a total of 354 councillors. The shift from the DA to the NNP, made up of
239 proportional representation and 118 ward seats, represented 61 percent of
the total number of councillors who crossed the floor.
The African
National Congress gained 104 councillors elected through the proportional
representation section of the ballot and a further 24 ward seats. A major shift
to the ANC was from the United Christian Democratic Party, which lost 21
municipal councillors who defected to the ANC in the North West province and
one in the Northern Cape. The DA lost 51
councillors to the ANC nationwide.
Concurrently, the ANC lost 16 councillors to other parties, while the DA
gained a total of 17 councillors from a cross-section of political
entities.
The reincarnation
of the local NNP was followed immediately by an alliance with the ANC and the
delivery of some DA municipalities, most notably the City of Cape Town, to
ANC-led alliances. The ascendant ANC
benefited most from the 2003 floor-crossing period, extending and consolidating
its position relative to the Official Opposition, while benefiting from further
fragmentation and discord within the broad opposition.
2003 National
and Provincial Floor-Crossing
The 15 days that followed the opening of the window period on 28 March
2003 saw 23 MPs and 21 MPLs defect to various parties and while others formed
new parties[5].
Nationally, the defections during this window period had a significant impact
within the National Assembly. Provincially, KwaZulu-Natal and the Western Cape
provinces were most affected.
Significantly, as a result of defections from the UDM to the ANC, the
ANC increased its representation to 275 thereby gaining a two-thirds majority
in the National Assembly. The defections also had a far-reaching effect on
smaller opposition parties. The UDMs representation in the National Assembly
was reduced from 14 MPs to 4 MPs. The DA on the other hand benefited
substantially during the window period. Its representation increased to 46
seats in the National Assembly with MPs mainly defecting from the NNP to the
DA.
In addition, the number of political parties represented in the National
Assembly was increased to 18 after 5 new parties were formed during the window
period.
Provincially, the ANC gained an outright majority in the Western Cape
legislature following defections of NNP and UDM MPLs to the ANC. Only one new
party was formed in the Western Cape namely the New Labour Party which has been
started by ex-Premier Peter Marais.
In KwaZulu-Natal the ANC increased its representation by three seats,
while the IFP lost two MPLs and the DA one respectively. The Peace and Development Party was
established as a new political entity through the floor-crossing window. The
NNP lost all representation in the legislature and ceased to exist in KZN.
2004 Municipal
Floor-Crossing
In September 2004,
460 councillors of South Africa’s 8951 councillors crossed the floor to new
parties using the defection window.
The ANC was the
major beneficiary of the floor-crossing haemorrhaging winning over 330
councillors, the majority from the NNP.
The DA came in second with 66, but lost 46. The UDM's loss was substantial - 54 crossed
the floor and only one councillor joined the party. The Inkatha Freedom Party
(IFP) lost 25 and gained 8. The Pan Africanist Congress (PAC) gained two new
members, but lost 22. The African Christian Democratic Party (ACDP) lost 13 and
gained 5. The Independent Democrats lost no councillors (it had not existed in
2000 and had no councillors) and it gained 39, ostensibly making it the
“fastest growing” political party.
2005 National
and Provincial Floor-Crossing
In total 25 MPs
(of 400) and 26 MPLs (of 480) used the window of opportunity to defect to
existing or new parties. The New
National Party’s Federal Council decision to collapse into the ANC was carried
out largely according to plan, with all seven of the party’s MPs crossing to
the ANC, as well as all but one MPL moving to the ANC.
The movement of NNP MPLs to the ANC in the
Western Cape meant that the ANC governed the province outright for the first
time; an outcome they have been unable to achieve through elections.
The general trend
was a further fragmentation and weakening of the opposition and the real and
relative strengthening of the ruling ANC.
The
ANC’s national
representation rose from 279 MPs to 293.
5 new parties were created in the National Assembly and more in the
provinces.
Internal party
problems in both the Inkatha Freedom Party and the United Democratic Movement,
relating to disaffection with leadership and stalled reform, manifested
themselves in break-away groups from both parties. The
National
Democratic Convention (NADECO) was formally instituted when 4 IFP MPs and 4
MPLs crossed the floor to form the new party.
Similarly the
United Independent
Front (UIF), led by the former Deputy Leader of the UDM was formed through the
defection of 2 MPs and 4 MPLs from the UDM.
TRENDS AND
CONSEQUENCES:
In total 1100
public representatives have crossed the floor since the inception of
floor-crossing in 2002. It has resulted
in changes of administration in two provinces and in a plethora of
municipalities.
The pattern of
floor-crossing over the total period has generally resulted in the
strengthening of the ruling party’s representation to the detriment of the
opposition. The coherency of opposition
has not only been undermined by declining representation but by the further
fragmentation of the opposition in legislatures.
The South African
system of representative democracy is premised on proportional representation
(PR). Glenda Fick, of Wits University’s
Law School, has observed that “The South African electoral system is valued for
its simplicity... its exclusivity (all votes count, there are no votes that are
excluded) and its representivity (the electoral system is capable of
accommodating a wide range of political parties and issues in a legislative
body, thereby giving effect to multi-party democracy)”[6]. In national and provincial elections the
total number of valid votes cast, constitutes 100% of the vote. Subsequent to elections, the votes accruing
to each party are tallied proportionately, and seats are assigned accordingly
in line with a formula for representation[7].
When an individual
MP crosses the floor it distorts the balance of representation as determined by
citizens through the ballot box. Fick
observed that “One difficulty presented by… South Africa’s floor-crossing
provisions [is to] permit the outcome of an election to be changed by the
subsequent actions of individual members of the legislature between closed-list
[proportional representation] elections.
Such a system translates the electorate’s preference for a particular
party during the election into a number of seats. If politicians are subsequently able to
change this number by crossing the floor, the political will of voters is
flouted”.[8]
In the National
Assembly each of the 400 seats represents approximately 0.25% of the vote. In 1999 15,977,142 valid votes were cast in
the National component of the election.
In this context each National Assembly seat accounted for 39,943 votes.
In the context of the 2004 elections, when 15,612,667 valid votes were cast,
each seat accounted for the representation of 39,032 voters. Consequently it can be argued that the 23 MPs
who crossed the floor in 2003, and the 25 MPs who crossed the floor in 2005,
nullified the voter intention of 918,686 and 979,792 voters respectively. These voters represented 5.75% and 6.25% of
the valid votes cast in the respective elections.
At the local
level, South African utilises a mixed proportional representation and first
past the post system. Ward councillors
are directly elected by communities and are accountable to their communities at
election time. If a ward councillor
resigns mid-term, a by-election is held, retaining the electoral balance as
dictated by voters. Currently,
floor-crossing allows ward councillors to unilaterally change the
representation accorded to their constituents without recourse to the will of
the community.
Opinion polls have
shown consistently that the effects of floor-crossing do not channel public
opinion. In other words, a 2% shift
toward a party through floor-crossing does not necessarily reflect a concurrent
shift in voter intention towards that party[9].
Electoral
performance can make a case for serious distortions in representation relative
to the will of the electorate: the NNP effectively came off a base of zero in
the 2002 local government floor-crossing window, and finished with representation
of over 340 councillors. Yet this “increase” in representation coincided with
the party’s most precipitous decline in support, as evidenced in the 2004
election results when the NNP lost 76.5% of the vote that had accrued to it in
1999. Moreover the proliferation of
small, new opposition parties in all legislatures has not held up to public
scrutiny. Of the five new parties formed
in the National Assembly through the 2003 floor-crossing window, only one, the
Independent Democrats, was returned to the legislature through the 2004
election.
The 2006 Local
Government election results for Cape Town highlight further distortions in
representation: Through two Local
Government floor-crossing windows the ANC increased its representation in the
200 member city council from 77 seats (on the back of 38.54% support in the
2000 elections) to 105 seats (or 52.5% of representatives). The DA saw its representation shrink from 107
seats (53.49% support in 2000) to 70 (35%
representation). In the 2006 election
the ANC was returned to an expanded 210 seat council with 81 seats representing
37.91% of the 2006 result. The DA won 90
seats with 41.85% of the vote. The
effect of the two defection periods in the first term of Local Government
thoroughly skewed representation for the two major parties in the City of Cape
Town council. When held up to public
scrutiny through the ballot box, the correction was significant. Equivalent distortions in representation are
evidenced through elections data for other legislatures in all three spheres of
government.
Floor-crossing
moreover undermines the principle of participatory democracy envisioned by
Constitution: representatives shuffle across the aisles of power without any
imperative to consult, or be held accountable to citizens, or their
opinions. It is reasonable to assert
that for each seat swapped in the National Assembly, the voter intention and
representation of 39 032 citizens who went to the polls in 2004 is nullified,
undermining the constitutional provision for the equality of all votes and
voters, and the right to representation.
Floor-crossing
also has a substantive impact on the provision of public money to political
parties through the Represented Political Parties fund as administered by the
Independent Electoral Commission.
The IEC formula
for allocating funds (90% proportional, 10% equitable) is applied below. For the purpose of the exercise below a
hypothetical sum of R10million is dispersed through the fund according to the
applicable formula:
Equity: The equity allocation is divided among
the provinces according to the proportion of seats that province has in
relation to the total number of provincial seats. There are 430 seats in all nine legislatures;
the Western Cape legislature which has 42 seats thus receives 9.767% (42/430)
to be disaggregated equitably between the parties represented in that
legislature. In other words if R1m is to
be distributed through the equity component of the formula, the Western Cape
will receive R97, 674.42 which is then divided equitably among the parties
represented in that chamber. This
scenario is repeated across the other eight provinces. The equity component of the allocation formula
does not take into account representation in the National Assembly.
Proportional: The proportional allocation is applied
according to the total representation of each party across all nine provincial
legislatures (430 seats) and the National Assembly (400 seats). For example the African Christian Democratic
Party (ACDP) prior to floor-crossing in 2005 had 15 seats across the ten
legislatures. The formula would assign
the ACDP R18, 072.29 if R9m were allocated through the proportional component
of the formula (15/830 x R9, 000, 000).
In practice the
current formula favours larger parties in the application of both the equitable
and proportional components of the allocation.
Parties with representation across all 3 or more provinces receive a larger
sum of the equitable component of the fund than parties with regional
representation. It is in this way that
the ACDP currently receives 30% more of the equity transfer than the
Independent Democrats (ID), despite the fact that the ID won more votes than the
ACDP in the National component of the election.
Similarly, the ACDP which had 8 MPLs in 6 legislatures prior to the
floor-crossing window received a larger share of the equity transfer than the
IFP who had 32 MPLs, but only in 2 legislatures. Parties with representation in
the National Assembly but without any representation in the provinces (e.g.
Azanian Peoples’ Organisation - AZAPO) receive no money through the equity
transfer. Given that the proportional
transfer weighs provincial and national seats equally, a party like
AZAPO which received sufficient votes in the National component of the general
election to garner a seat in the house (0.25% of representation, or 1/400, in
the NA) receives 0.12% (1/830) of the proportional transfer, and none of the
equity transfer.
Floor-crossing has
further distorting effects on allocations under the current formula. The 2005 defection period resulted in a
number of single member parties in both the national and provincial
legislatures. The application of the
equity component of the formula at provincial level only means that single
member parties in provincial receive larger shares of the total fund than
single member parties in the National Assembly who, if they have no provincial
representation, receive nothing from the equity transfer. The provincial bias of the equity component
also means that a new party like the United Independent Front with 2 MPs in the
National Assembly, but six MPLs across 4 provincial legislatures will now
receive a larger share of the total fund than the United Democratic Movement
who have 6 MPs and 5 MPLs, but importantly only in two provinces.
The table in APPENDIX
1 disaggregates the hypothetical dispersal of R10m through the fund as it
would apply after the 2005 National and Provincial floor-crossing period.
The application of
the formula shows significant distortions.
One example is the fact that the Christian Party, a one person party in
Mpumalanga (formed through the defection of the single representative of the
Freedom Front Plus) that has never contested or won representation through an
election, accrues more than three times the amount of money allocated to AZAPO,
a party that won sufficient votes in the 2004 elections to win representation
in the National Legislature.
Public money, in
this way, is afforded to new parties formed through floor-crossing although
these parties have not tested their ideas with the electorate. If citizens do not approve of new parties
receiving public money, they must wait until the following election to vote
them out their positions. In the interim
millions of rands of public money is arguably dispersed in a problematic and
unaccountable manner[10].
Floor-crossing
also exacts punitive costs to the public purse through the fragmentation and
contingent proliferation of parties.
Each new party formed through floor-crossing at National and Provincial
level receives funds to support their legislative activity (administration,
research, etc). The leaders of the new
parties also receive higher salaries accorded to the status of “party
leader”.
Public Opinion,
Public Trust, Political Culture and Participation
10.3 Do you approve or disapprove of Parliamentary
representatives leaving their political party and joining another party, also
known as “floor crossing?” |
|||||
|
|
|
|||
|
Black |
Coloured |
Indian |
White |
Total |
Approve strongly |
18 |
12 |
8 |
5 |
16 |
Approve somewhat |
16 |
20 |
9 |
14 |
16 |
Disapprove somewhat |
21 |
35 |
21 |
17 |
21 |
Disapprove strongly |
41 |
27 |
58 |
57 |
42 |
Don’t know |
4 |
6 |
2 |
7 |
4 |
Refused |
* |
1 |
1 |
* |
* |
Source: http://www.washingtonpost.com/wp-srv/politics/polls/vault/stories/sapoll_10years.pdf |
|
|
|
|
|
For all the
reasons highlighted above, it is not surprisingly many citizens feel aggrieved
by the system of floor-crossing as it is currently legislated in South
Africa. A survey released by the
Washington Post, Kaiser Family Foundation and Harvard University in 2004, asked
citizens “Do you approve or disapprove of
Parliamentary representatives leaving their political party and joining another
party, also known as ‘floor crossing’?”
Results indicated high levels of antipathy towards defection: 32% of respondents indicated “some” or a
“strong” level of approval for floor-crossing.
In contrast a total of 63% of respondents indicated “some” or “strong”
disapproval of the regime. The largest
group of respondents, 42% of the sample, disapproved “strongly”.
Data also suggests that floor-crossing reinforces
perceptions of alienation among sections of the South African voting
public. In 2004, turnout of voters in
KwaZulu Natal and the Western Cape, the two provinces most effected by the 2003
national and provincial defection period, registered the lowest levels of voter
turnout for polls across the country, 73.51% and 73.05% respectively.
When weighing up the advantages of exercising
democratic citizenship with spending the morning in bed on Election Day, it
must be tempting for supporters of smaller parties to veer for the latter when
the net beneficiary of floor-crossing at all levels has been the ruling party
at the expense, and fragmentation, of opposition in toto. The ANC, effectively protected by the clause
requiring 10% of a caucus to cross before any individual may move, is yet to
lose a national or provincial seat in any legislature through
floor-crossing. Unsurprisingly, the
system is perceived as unfair.
Voter apathy in the context of a PR system has a
substantive effect on electoral outcomes.
Voters impact on the result whether they vote or stay at home. If 2 people vote or if 20 million people
vote, the sum of the votes is formulated into a 100% figure and divided up
proportionately. When people stay at
home they thus increase the proportional and representational “power” of every
vote that is cast.
There is also an argument to be made that
floor-crossing is bad for internal party politics. The 2005 floor-crossing window saw, for
example, the IFP, a party already in electoral decline, haemorrhage
representation to the newly formed National Democratic Convention (NADECO) - a
party that ironically has never contested an election, but now holds
representative power in two spheres of government. Representatives who have left the IFP for
NADECO have cited various reasons for their departure: from clashes with the
leader of the party, to a lack of vision on the part of the organisation.
The defection of these members from the IFP has robbed
that organisation of an important internal debate, and one which potentially
could have changed or renewed the organisation.
Floor-crossing encourages disaffected members to withdraw from party
disagreements, sucking the life-blood from the internal debates that drive
political parties to remain relevant to the concerns, grievances and
aspirations of citizens more generally.
The temptation to jump ship rather than engage one’s
colleagues in substantive debate appears to be an increasing reality in South
African politics. This is unhealthy in
the context of a developing political culture.
All this is compounded by the context of an ongoing
process of consolidating democracy. For
democracy to sustain itself, it has to win the trust of its citizens. In the context of a transition from
authoritarian rule, this project has to assert itself in opposition to the
lived memories and experiences of institutional impunity.
Current data suggests that Parliament’s long haul
towards establishing legitimacy in the eyes of the public has been largely
successful, but it remains work in progress.
The 2005 Afrobarometer survey found that 23% of citizens trusted the
institution of Parliament “a very great deal” while a further 29% trusted it “a
lot”. The 2004 Washington Post/Kaiser
Foundation survey reported that 45% of respondents had a “great deal” or “quite
a lot” of confidence in Parliament. The
largest single segment, 30%, remained ambivalent, indicating “some” confidence
in the institution; a further 23% indicated “not much” confidence or “none at
all”.
Perceptions of expedience driving defection, the
distorting effects of floor-crossing on representation and participation, the
apparent link between rising levels of voter apathy and floor-crossing and the
negative effect of floor-crossing on internal party politics are trends that we
should all worry about. The
contradictions arising at the intersection of a proportional representation,
party list electoral system and floor-crossing, as currently legislated,
indicate the need for either electoral reform, or the reform or scrapping of
floor-crossing.
Data clearly indicates that the citizens of South
Africa care dearly about this. The
commitment to addressing these grievances on the part of our representatives,
however, remains questionable.
CONCLUSION
It is our view that the system of floor-crossing as
currently legislated in South Africa, within the context of an election system
Constitutionally premised on proportional representation, runs contrary to the
spirit of accountable, participatory and representative governance as
articulated by the Constitution. While
floor-crossing does not threaten the legitimacy of the democratic edifice in
and of itself, it has introduced unhealthy and avoidable consequences to our
developing democratic system and culture.
Opinion and electoral data highlight worrying trends
that indicate the potential for public antipathy towards floor-crossing to
reinforce voter apathy and perceptions of alienation within sections of the
voting public.
In light of the evidence noted above, it would be
prescient for Joint Constitutional Review Committee and other democratic
institutions to revisit the floor-crossing legislation, and/or the electoral
system, to realise an optimal institutional arrangement that mitigates the
systemic contradictions and problems perpetuated by the current structural and
legislative regime.
Glenda Fick notes that “Within a closed-list system
[as currently legislated in South Africa], floor-crossing undermines the
outcome of voting. It dilutes the
electorate’s expression of support for a particular political party, support
expressed principally through the vote… this results in an anomalous and
awkward arrangement. A way of addressing
the anomaly would be to change the electoral system to one that sits less
awkwardly with the constitutional provisions while at the same time retains the
benefits to democracy associated with the closed-list [proportional representation]
system”.[11]
The Electoral Task Team (ETT)[12]
appointed by government to review the electoral system prior to the 2004
elections, recommended “a move to closed list [proportional representation] in
multi member constituencies in time for the 2009” to “address the question of
accountability… and establish a closer link between the voter and his/her
representative”[13]. The advantages of the system proposed by the
ETT was that it could proceed on the basis of existing demarcations, with a
single ballot paper, retaining, in turn, many of the advantages, and
simplicities inherent in our current electoral system. Moreover, the system proposed by the ETT
could evolve over time, in line with the South African transition, for example
to a second ballot paper, or to a strike out, or ranking system. The report is yet to be debated in
Parliament. If adopted, the system
proposed by the ETT would go some way towards addressing the anomalies thrown
up at the intersection of the current floor-crossing regime and the electoral
system as it is practised in contemporary South Africa.
Extending the electoral system currently legislated in
the local sphere to the National and Provincial level, would similarly retain
many of the advantages inherent to our current electoral regime, concurrently
entrenching greater accountability of representatives to constituents, as well
as allowing for accurate fluidity in representation as effected through
by-elections. This would, however,
require the scrapping or reform of floor-crossing as it is currently
legislated.
South Africa has much to be proud of. The Constitution, now in its tenth year of
implementation, is the bedrock of a vibrant and effective democratic
system. However, the evidence cited
above raises serious concerns about unintended consequences arising from the
First (Act 18 of 2002) and Second (Act 21 of 2002) Constitutional Amendment
Acts. The Parliamentary Joint Constitutional Review Process offers a timely
opportunity to assess the floor-crossing within this context.
JONATHAN FAULL
May 2006
IDASA
CONTACT DETAILS FOR AUTHOR:
Telephone: 021
467 5600
082
415 0197
email: [email protected]
[2] ANC Committed to Democratic System. Cape Times, 8 September 2005.
[5] If one includes the DP MPs and MPLs who crossed the floor to form the DA, the number of defectors rises to 61 MPs and 55 MPLs.
[6] Fick, Glenda. “Elections and Democracy: Is there free and fair selection of decision makers?” in Calland, R. & Graham, P. (Eds). Democracy in the Time of Mbeki. (2005) Institute of Democracy: Cape Town
[7] In the local sphere, a mixed PR and first past the post system is utilised.
[8] Fick, G. Op Cit.
[9] See the Mail & Guardian article South Africans are Disillusioned with Politics at http://www.idasa.org.za/gbOutputFiles.asp?WriteContent=Y&RID=415
[10] See http://www.businessday.co.za/Articles/TarkArticle.aspx?ID=1681174 for additional opinion on this matter.
[11] Fick, G. Op Cit.
[13] Fick, G. Op Cit.