Is the Electoral Act No 78 of 1998 Unconstitutional?

What do you do if you want to exercise your democratic right to vote, but don’t like any of the political options on offer? Many people say the solution to this dilemma is obvious – if you don’t like the options, don’t vote! One of the main problems I have with this “solution” is that an ever-growing number of people not voting undermines the very foundations of our democracy.  

Larger numbers of people not voting is also a clarion call for politicians to use more populist tactics in their attempts to attract disaffected voters. Instead of approaching society’s problems with visionary plans and coherent manifestos, party leaders are making more outrageously undeliverable promises. Some are also irresponsibly resorting to the “Big Man” politics of personality. Neither approach has any chance of solving our huge poverty and unemployment challenges but, hey, it will probably buy the political elite another five years of the high-life.

My dilemma, in a nutshell, is that I am committed to voting. I believe that it is not only a right, but a privilege and a responsibility that we must all diligently exercise. But, as hard as I try, I cannot identify with the ethos or ideology of any of the political parties pandering for our 2019 votes. If you are unfamiliar with the word, a pander is a pimp, or someone who exploits the weaknesses of others.  Based on past and present performance the word sums up South African politicians perfectly. An MP, after all, is really nothing more than a pimp for their party, exploiting the weaknesses and desires of others to attract votes.

I have long expounded a belief that the South African electoral system is legislatively defective, and my current dilemma serves to entrench that belief. I am not qualified to offer a considered legal opinion – I hope others will take this up from a legal perspective – but, logically, some provisions in the Electoral Act No. 73 of 1998 do appear to conflict with, or at the very least circumvent the Constitution. For example:

Chapter 2 of the Constitution: Bill of Rights

Section 16: Freedom of Expression – (1) Everyone has the right to freedom of expression

Section 18: Freedom of Association – Everyone has the right to freedom of association

Section 19: Political Rights – Every adult citizen has the right-

(3) (b) to stand for public office and, if elected, to hold office.

Chapter 3 of the Electoral Act: Proclamation of and Preparation for Elections

Part 3:   Requirements for parties to contest election

26. A party may contest an election only if that party:

  (a) is a registered party; and

  (b) has submitted a list of candidates in terms of section 27

In National and Provincial elections, my Constitutional right to stand for public office and, if elected, to hold office is therefore severely compromised by the requirement to be on a political party list. Forcing me to be on a party list channels my right to freedom of association to a registered political party which will undoubtedly require me to toe the party line, thereby also limiting my right to freedom of expression.

Chapter 3 of the Constitution: Co-operative Governance is also reasonably clear about political rights.

Sections 47 (1), 106 (1), and 158 (1) relating respectively to National, Provincial, and Municipal spheres of government all state – Every citizen who is qualified to vote is eligible to be a member of the National Assembly/National Council of Provinces/Municipal Council.  Only in the case of municipalities is there any mention in the Electoral Act of “Candidates”, in National and Provincial it only refers to “Party Lists”. It is therefore only in Municipal elections that I, and my fellow constituents can exercise, as independent candidates, freedom of association and freedom of expression, free of interference from political parties and their leadership.

Sections 46 (1)(d), 105 (1)(d), and 157 (3) relating respectively to National, Provincial and Municipal spheres of government also assert that the electoral system used must result, in general, in proportional representation. Note, it says IN GENERAL, and not EXCLUSIVELY proportional representation.

Through the Electoral Act, politicians have hijacked the Constitutional rights of citizens by entrenching political party exclusivity into National and Provincial elections. Constituency accountability has been sacrificed in favour of entrenching the power of party leadership, which has clearly proved itself to be extremely detrimental to our democracy, and counterproductive to the wellbeing of the people of South Africa.

I sincerely believe it is essential that the Electoral Act be urgently amended to include, at a minimum, a more constitutionally aligned and mixed constituency/proportional representation system for National and and Provincial elections. The amended system must also include the facility for qualifying citizens to register as Independent Candidates. We need more choices than just the best of a bad bunch, and more accountability from directly elected candidates.

In addition, bearing in mind some of the current speculation that the ANC might just be using Cyril Ramaphosa to win the 2019 election for them, before replacing him with the highly suspect Zumarite, D D Mabusa, it might be as well to also include a provision for the direct election of the President of the Republic by its citizens. Parliament is supposed to choose the President, but so far it has been the general hoi polloi of the ANC who have chosen a name to be rubber-stamped by MP’s. We all know how that’s worked out in the past, and will no doubt work out again in the future, but if we at least choose the person ourselves, we only have ourselves to blame for the outcomes – just saying.

The Short Walk from Democracy to Shamocracy

What does “democracy” mean in the 21^st century? In the same way that we tend to blindly accept the diagnosis of a trusted doctor, we also blindly accept the established political narrative that one-man-one-vote is the pinnacle of democracy.  This narrative is based on a premise that voters have sufficient intellect and education to assess the reasonability of alternative political ideologies.  American economist and social theorist, Thomas Sowell, pointed out a fundamental problem with this, when he observed - “One of the painful signs of years of dumbed-down education is how many people are unable to make a coherent argument. They can vent their emotions, question other people's motives, make bold assertions, repeat slogans-- anything except reason”.  Five minutes spent on any social media platform will allay any doubts you may harbour as to the truth of this observation.

With objective political reasoning of voters disappearing around the world, money has been talking louder than the electorate for quite some time.  In the 2016 Trump/Clinton Presidential campaigns in the USA for example, a combined $1.16 billion was spent on direct campaign expenses just for the two of them. On top of that they received an assessed $8.24 billion in “free” media coverage. Someone, somewhere, is handing over large amounts of money to make this happen, and I’m pretty sure it’s not the voting masses. Who it is, and what they want for their investment I’ll leave to your imagination. 

It certainly suits wealthy political donors to have the masses believe that by casting their vote they are participating in “government of the people, by the people, for the people”, while they quietly control government policy from the shadows. Such a “government of the state by the wealthy” is called a plutocracy. It has been argued that any country that holds democratic elections cannot, by definition, be plutocratic, but with the amount of money needed for politicians to campaign for election, this argument is questionable.

The situation in South Africa is more clear-cut. Our President is a billionaire, and apart from whatever other “perks” of office they may attract, our politicians rank among the highest paid individuals in the country. The poor have become destitute while the politically connected have become fabulously rich - we are literally, without fear of contradiction, being governed by the wealthy. We have become a plundering plutocracy of note, but how did we reach such a low point?

In 1994 not all, but most of us, both Black and White, set out to turn the dream of a “Rainbow Nation” into reality. To forge a Nation where equality of opportunity was paramount, and where no-one would be left behind simply through circumstance.  24 years later, our basic infrastructure remains in place, mineral resources are still extensive, our flora & fauna is stunning, and the diaspora of people is our greatest untapped asset – but these solid foundations for nation-building have been undermined by the insidious game of money-driven, divisive politics that has been playing out over the last two decades.

Following the almost euphoric interlude of Nelson Mandela’s Presidency, we endured nine years of Thabo Mbeki, who obviously skipped Governance 101 lectures regarding the absolute necessity to have a strong, politically independent and experienced Civil Service. During his tenure, Mbeki single-handedly decimated the Civil Service by replacing all the experience and institutional memory of White officials with untested, inexperienced, and mostly underqualified ANC cadres. Instead of adopting a Mentor/Understudy approach where institutional memory could have been transferred, and experience gained in an orderly fashion, Whites were deliberately marginalised as he went straight into politically dependent direct replacement mode. 

This is when the service delivery rot started to set in - not because all the ANC people Mbeki appointed were incapable or incompetent but, to draw an analogy, it was the equivalent of putting a newly-licenced 17-year old driver behind the wheel of a Formula 1 Ferrari, with a command to win their first race. Failure was inevitable, but failure was something Mbeki consistently refused to acknowledge, so incompetence and corruption were passed off as being White sour grapes. Deflection became an integral part of the blame game, and so the smouldering embers of “identity politics”, so nearly doused by Mandela, were rekindled. Some disaffected Whites also did their best to fan the flames, with their most popular dinner table topics revolving around the inability of Blacks to run anything - usually delivered with a smug “I-told-you-so” nuance. The more Mbeki refused to acknowledge incompetence and corruption in his administration, the more emboldened his appointees became to accumulate undeserved wealth while evading accountability, and the more derisory the comments became around some melanin-challenged dinner tables.

Through his own denialism, Mbeki triggered our downward spiral and unwittingly set the scene for the entry of one Jacob Zuma. The wounds of his tenure are too deep and too fresh to need repetition, except to say that Zuma obviously exploited the lack of accountability, fostered by Mbeki, to corruptly accumulate obscene levels of familial wealth. The rest is history as they say, except to recognise that the political damage inflicted on South Africa by Zuma may ultimately prove more difficult to rectify than the financial damage. 

Through his system of patronage that rewarded personal loyalty over party loyalty and constituency accountability, Zuma was the prime architect and major beneficiary of South Africa’s politocracy - a form of government that emerges in multi-party systems where politicians work for themselves, not for their party, nor the electorate. Anyone requiring further proof beyond Zuma that we have become a fully-fledged politocracy need only to look at recent events in Northwest Province. If Premier Supra Mahumapelo was self-respecting rather than self-serving, he would have immediately and voluntarily stepped down, if not for the sake of the Province, at least for the sake of his party. Unfortunately, it seems he will eventually have to be dragged away from the public trough, no doubt kicking and screaming the whole way.

Mahumapelo is just one example of the many ANC politicians who put their personal wellbeing above their party and the electorate. It is easy to name-and-shame them all, and to clamour for the ANC to be voted out of power in 2019, but who or what will replace them? The DA, who within their own ranks have a fair share of politicians happy to give the party a very damaging middle-finger? Or those wannabe champions of the poor and downtrodden, the EFF, whose leadership consists of a tax delinquent; a serial bully who happily assaults journalists; and a failed CEO of the SABC, who walked away with an R11m golden handshake after just 18 months of mismanaging the national broadcaster? 

So here we are in 2018 in our Shamocratic State, looking for answers in all the wrong places. The DA is busy imploding, seemingly not knowing how to find their way out of the mess they dropped themselves into with Patricia de Lille, and Cyril Ramaphosa is having to pussyfoot his way around the minefield of ANC factions he inherited from Jacob Zuma. As it stands, our two main political parties appear incapable of governing themselves, let alone the country. In the meantime, the EFF are singularly hell-bent on fomenting racial hatred, which if left unchecked for much longer will almost certainly end in tears. EFF leaders have also missed the obvious irony in their political posturing. Depriving state coffers of desperately needed funds, either by not paying due taxes, or by taking extortionate hand-outs from public enterprises, is simply another form of stealing from the poorest of the poor hidden behind the thinnest veil of legitimacy.

Fine choices for the 2019 National elections don’t you think? 

We have a beautiful country populated by a wonderful diversity of people - but to quote Chief Justice Mogoeng speaking to delegates at the 2018 South Africa Brand Summit "Institutional racism has gone too far. There are far too many messages going out there and I am not sure the outside community knows who to listen to any more. We owe it to ourselves to examine what needs to be done to unite South Africa racially. We have had enough incidences to drive home the urgency to address the problem, and not just pay lip service to it. I live this country and I believe that we can pull it back from the edge. We need to choose ethical leaders, whoever they are, and we need to protect our world class institutions."

Can we still find ethical leaders within our existing Shamocracy when there is no motivation for any of them to change the status quo?  They enjoy an elevated status that pays extremely well, and they can apparently say and do whatever they please without fear of censure or retribution. Where mere mortals are jailed for inciting racial hatred, tender fraud, perjury, assault, or just plain theft, politicians accused of the same offences remain untouched.

As divisive political rhetoric is the last resort of politicians who have no practical policy ideas to unite the country, we should be ignoring these empty barrels and rather be calling them to account for their transgressions. It is past time for Blacks and Whites to join hands to defeat the perverse political assault on our democracy, to find the common ground that will take us all forward, and not backwards to the dark days of racial conflict. I don’t know about you, but I am tired of listening to politicians who seem to have only two modes of address, either strident, or vacuous– it really is time we made them listen to us.

Don't despair, we have a great country with infinite potential. Change may seem impossible but "It's only impossible until it's done" - Nelson Mandela