The 52nd National Conference of the ANC, scheduled for December 2007, will once again provide an important platform for our movement to engage with matters relating to legislature and governance. The conference will adopt resolutions on amongst others the organisation of the state, system of electoral representation providing a broad framework for governance, giving our movement clear strategic direction for the last five years of the second decade of freedom. The resolutions should provide enduring and useful guidance for the ANC as a whole, but in particular for those cadres that we deploy to government and legislatures to implement policy and develop tactical responses to a dynamic and constantly evolving society:
The conclusions we reach in December must therefore be informed by the widest possible input from our people. Members of the ANC - through open discussion in their branches, regions and provinces - as well as the structures of the Alliance and the broad democratic movement must all make a contribution to this important debate. By building a broad consensus on the governing strategy we can confront the challenges we face over the next decade with confidence, as a united movement with a clear vision of the road ahead.
This document intends to provide a basis for these discussions. The first section touches on the proposed electoral system,
The debate was prompted by the establishment, at the behest of Cabinet, of the Electoral Task Team (ETT) under the chairpersonship of Dr Frederick Van Zyl Slabbert. The ETT was tasked with establishing an electoral system for post 1999 provincial and national elections. This was necessary because the constitutional arrangements in the Constitution (1996) did not provide for an electoral system beyond the 1999 elections. This created a vacuum that had to be filled by national legislation within the constitutional framework.
The terms of reference of the ETT were to:
The ETT was initially composed of 13 members, of whom one resigned and was not replaced. Whilst the ETT was unanimous on the core values to be observed in the formulation of any electoral system, it was divided on the appropriate future electoral system for the country. Thus chapter 4 of the report reflects the views of the majority (8 members) while chapter 5 contains the views of the minority (4 members):
The report of the ETT captures the summary and conclusion of the majority view in chapter 4 as follows (page 30):
"The nub of the majority view is that it is worthwhile to make legislative provision for an electoral system that can evolve to a larger multi-member constituency system with a compensatory national list. In order to facilitate voter accessibility and responsiveness between voter and representative, multi-member constituencies with between 3 and 7 members in the National Assembly are envisaged. This would require approximately 69 multi-member constituencies to provide 300 representatives for the National Assembly with 100 representatives allocated from national lists to restore overall proportionality. Both the constituency and national lists would be closed."
The above system was envisaged in respect of post-2004 elections:
It is worth noting that while they argue that you need the constituency system to free the public representatives from party bosses, their proposals is for a party list!
Their proposal is also in conflict with the Constitutional Principles that states that: "...and in general, proportional representation" in that the proposal is based on 300 seats constituency and only 100 proportional to top up!
The report captures the conclusions of the minority, without summarising the under-pinning reasons, in chapter 5 (page 73) as follows:
"The present electoral system was introduced, primarily, to ensure the promotion of political diversity within our legislatures, and broad political representation. These are not short-term goals which can be attained overnight:
These goals are the cornerstone of our transition to a truly integrated, non-racial and peaceful society. The deracialisation of our political landscape, also, is still a critical challenge. We therefore must stick to the tried and tested electoral system. We cannot afford to experiment at this critical stage with a system whose form, worth and implications have not been thoroughly thought through, debated, evaluated and publicly interrogated.
(Judged against the mixed system currently being used at local government at present the statement can not be taken at face value to be correct).
We must also state that there is no ideal, universal electoral system. Every system has its advantages and disadvantages. In South Africa we have a system that our electorate has bought into, that cannot be improved on for fairness and inclusivity and which meets our current challenges as a country. Finally, the proposals contained herein are in line with our terms of reference, particularly the one which urges us to "note that the electoral system described in the bill need not be different from the existing one but that this will depend on inputs received and the assessment of the overall interests of consolidation of democracy in our country".
13. In essence the minority's position is that 'if it isn't broken, don't fix it".
They state (para 5.18.11, page 72) that:
"We do not believe that at this stage of our transition, South Africa should promote national political contestation on a regional basis. This would compromise nation building and racial and ethnic harmony. In any event Parliament deals with national issues and policies. Other matters are appropriately handled at provincial and local government level.
Accordingly, there is no need to cater for regional interests specifically in the manner envisaged by the proposals in Chapter 4.
In the paragraph following the above one, the minority make a further observation which is critical for us to consider in our debate. Their observation is captured in the following manner:
"Some of the proponents of the system proposed in Chapter 4 are simply satisfied by the fact that it is "evolutionary". Others see an ideal system being one where the party lists are open and the electorate can decide which candidates on the lists should represent them. These suggest that by adopting legislation to implement the new system Parliament would allow itself space to evolve the system until an ideal one is achieved. We believe that Parliament as it is composed at any given time in the future will be best able to decide if and when the present system should be replaced by another one, taking into account the status of transition in our country. There is therefore no need for Parliament to bind itself at this time as to how it should conduct itself in the future."
(According to this position we could at any time pending the level of transition decide on a different electoral system if we so wish)
The approach taken by the minority position of the ETT coincides with the existing ANC position as captured in the policy conference discussion document.
The National Policy Conference of the ANC, held from 27 - 30 September 2002 at Ekurhuleni, adopted a position on the future electoral system -informed by ANC constitutional structures, as part of a comprehensive resolution on Transforming the State and Governance. The following is an extract of the relevant portions of this resolution:
"Noting:
The challenge of nation building remains the primary task of the ANC for the full realisation of the NDR.
The current electoral system contributes to nation building and the maintenance of stability by promoting inclusivity and national reconciliation; that the proportional representation system has facilitated representative institutions with a special focus on women, rural communities and other targeted groups such as people living with disabilities, the elderly, youth and that accountability is not dependent solely on an electoral system.
That where people are not involved in the decisions that affect their lives, social policies and political interventions are less likely to succeed. Participatory democracy should therefore complement and enhance representative democracy.
Therefore resolves on a Future electoral system
To retain the current system and to review the constituency work of its public representatives to enhance accountability."
The policy document discussion paper opens with the following quote from O.R. Tambo's message to the fourth congress of Frelimo: "We conceive of our country as a single united, democratic and non-racial state, belonging to all who live in it, in which all shall enjoy equal rights, and in which sovereignty will come from the people as a whole, and not from a collection of Bantustans and racial and tribal groupings organized to perpetuate minority power".
It goes on to among other things raise the following points for consideration by the membership:
Any sober review of an electoral system should therefore include a detailed analysis of our objectives in the transition period, including the nature of the transition state and the policy objectives of government in the coming decade. We must approach these issues in a frank and open manner, with a view to develop the best system that meets the core objectives of the transition, namely building a united nation, enhancing and deepening democracy and advancing the developmental agenda to create a better life for all.
Our starting point is the strategic objective of the NDR, the creation of a non-racial, democratic, non-sexist and united South Africa. The Strategy and Tactics (1997) recognises that we are in a phase in which we have started to change society at the same time as we transform the instruments required to effect that change.
These twin objectives have to be pursued simultaneously. Social change cannot await the transformation of the state machinery and other instruments of power. But, as experience has taught us, we cannot expect to proceed with the desired pace without changing these instruments"
The 1996 final Constitution does not have detailed prescriptions about how elections for national and provincial legislatures should be run. The constitution provides only a number of broad principles for the election. It also contains transitional arrangements, which specified that the present system only applied until 1999 and that new legislation for new electoral systems could be made subsequent to the 1999 election.
The Electoral Task Team (ETT), chaired by Prof Van Zyl Slabbert, was appointed to make recommendations about a future electoral system. The ETT was established at a time when there was heightened debate in the media about whether a constituency or proportional representation system better served democracy.
The NEC discussed the ANC position at its regular meeting in July 2002 and decided that we should continue to support a PR system for national and provincial elections. We adopted this system during negotiations before 1994, because we wanted an inclusive system and the representation of minority views, in the interest of an inclusive transition. The movement believed then that eight years later, we still needed to harness our inclusive political system in the interest of nation-building and national unity.
The Electoral Task Team made recommendations about changing or improving the present system in their report of January 2003. We agreed that the NEC would have to consider the specific recommendations before we adopted a final position. Eventually we decided to retain the present system.
What should our position on the electoral system be in 2006?
There are three main systems that we must consider:
We will briefly look at each of the criteria as they apply to each system, and then summarise conclusions:-
This will limit the preparation, training of officials and voter education that has to be done. Both the other systems would require extensive changes in law and procedures. (The high numbers of spoilt ballots at local government level where voters exercise such choice is a case in point).
The current system in place affords a great degree of stability. It allows for fair representation and gives a voice to all. It has certainly allowed for a greater degree of participation of women, people with disabilities and other targeted groups than any other system could. The system is also simple and familiar to voters. (We are awaiting statistics of such representation from the department of Provincial and Local Government).
Our preference for this system in no way diminishes the need for constituency-based consultation and communication. We remain committed to deploying MPs/MPLs to constituencies. We should continue to find ways to improve this practice. We should also look at better ways for our elected representatives in all spheres of government to work together to serve a constituency effectively.
Modern parliaments are mostly directed by party positions rather than individual MPs views. Therefore political parties are the main vehicles for the representation of various interests. The trend is for voters to find a home in the ideology and policies of a particular party and to vote for the party or its candidate at all levels.
What should our position on the electoral system be in 2006?
The conditions that informed our position in 2002 and during negotiations on the Interim Constitution through to the final Constitution have not changed in any material sense. Therefore, the integrity of our 2002 position remains valid and justifies the retention of the current electoral system. Complementary reasons for this position, as well as a summary of existing reasons, appear below.
The ANC position in 2003 on different electoral systems was summarized as follows:
The conditions that informed our position in 2002 and during negotiations on the Interim Constitution through to the final Constitution have not changed in any material sense. Therefore, the integrity of our 2002 position remains valid and justifies the retention of the current electoral system. Complementary reasons for this position, as well as a summary of existing reasons, appear below.
The following five criteria were proposed for evaluating potential electoral systems:
Does it deepen democracy and reflect the democratically expressed will of the people?
Will it contribute to nation-building and maintain political stability and peace?
Will voters feel effectively represented by the elected parliamentarians?
Simplicity in terms of voter understanding and Practicality in terms of implementation
Taking into account the principles underlying the Interim Constitution and the final Constitution the ETT unanimously concluded that fairness, inclusiveness, simplicity and accountability are core principles that should underpin any electoral system. Members of the ETT were however divided on whether an electoral system within our constitutional framework could improve the accountability of elected representatives to the electorate. We ourselves identified the following 5 criteria for evaluating electoral systems:
The principles and criteria reflected above are mutually inclusive. Our point of departure is however that an electoral system cannot create greater accountability than regular and constitutionally compliant elections. Internal party democracy and the recognition that voters can "make or break" a party at elections goes a much longer way to achieve the objective of accountability. In other words, the need for electoral support requires parties to be accountable and responsive to the electorate between elections. This cannot be achieved only by tinkering with the number or sizes of constituencies or the mixing of electoral models.
The debate about the need to establish an electoral system that provides for more accountability at national and provincial levels overlooks the fact that our municipal electoral system is mixed between proportional party list representatives and ward representatives. No commentator has observed that this mixed system provides for more accountability than proportional representation at national and provincial elections.
Complaints about the lack of accountability of councilors in general are wellrecorded. This phenomenon suggests that apart from regular elections, issues of ensuring accountability are determined by voter activism and advocacy about rights and obligations of citizens.
Our municipal elections are premised on the idea of creating proximity between citizens and elected politicians at the most accessible level. This is, however, not enough to achieve desirable levels of accountability. We can only do this by building our capacity to attract members and/or voters by intensifying our interactions with communities and ensuring a two-way communication and engagements with them.
The oft cited view that the current system lends itself to abuse by "party bosses" is ill-conceived. The very "party bosses" are elected through internal party processes that range from being democratic to being dictatorial. The choice of who party leaders are lies with those who are interested in the internal leadership contestations. This is the very stuff politics is made up of. If members of political parties get it wrong, the party will pay the price at the following national, provincial or municipal elections.
The factors that led us to go the proportional representation route for national and provincial elections remain valid. We are still a nation in transition and must ensure that we facilitate representivity across the various sectors of our communities through a credible, generally accepted and understood electoral system. Our current system can best help us reach the true objectives of the NDR within the framework of our founding constitutional principles. The imperatives to retain the current electoral system remain and call upon us to improve our responsiveness to the electorate within the ANC.
Assessing the options for institutional change in the current context
It is increasingly obvious that well organized and highly effective state institutions are crucial if South Africa is to meet the goal of attaining a better life for all. Realizing the objectives of the Age of Hope requires that delivery and development programs reach the poor communities who must rely on an effective developmental state to create the possibility for personal and collective fulfillment, prosperity and human dignity to flourish. The state machinery must continually adapt so as to respond to the expectations of millions of people quicker, on a massive scale and in the most effective, efficient and accessible ways.
The period of negotiations in the 1990's defined the present form of Government in South Africa, in non-ideal conditions. A decade of practice raises the question whether the form of state is still appropriate to the conditions prevailing in South Africa today. Practice also shows that in response to the concrete challenge of developing the country the three sphere system of government is in fact undergoing an evolution, some aspects of which have begun to transcend the existing form of state. In particular the lessons of local government transformation have raised profound questions about the organization and performance of the other two spheres of government and for the ruling party:
One of the key lessons from the first term of local government is that it has become evident that provinces by and large do not have the overall capacity to monitor and support municipalities, as the Constitution intended. This has meant that national government has increasingly had to assume these responsibilities, through Project Consolidate and other initiatives.
A decade later critical questions arise about the value add of the provincial system in its own right. If actual service delivery is the measure then some provinces have not added much value in the last twelve years. The Northern Cape for example, which is the largest province is also losing economically productive capacity to other centers of economic development, has limited capacity relative to the size of its area, and contributes marginally to the overall national economy.
The provincial system has also raised challenges for the ruling party and deployment, where in some provinces leadership of the provincial party and provincial government are different.
Service delivery has also not happened at the pace that was wanted, even as the expectations of people for a better life for all has grown. Practice shows that national and provincial departments by and large are too remote operationally and often disconnected from the realities of community need and development at local level, with long lines of communication between spheres of government, and overly complex planning, EIA and other decision-making processes
The cooperative government model, which was a product of the negotiation phase suited to that time and experimented with over more than a decade, has also not worked, if the measure of its effectiveness is service delivery efficiency and responsiveness. Some countries with similar models to cooperative government have begun to question whether it is still optimal for achieving responsiveness, public participation and efficiency. The fact is that the more layers of government there are, coupled with an unclear division of functional responsibilities, the greater the complexity that must be coordinated, with a retarding effect on service delivery.
Much has been achieved in the decade after democracy, and in the process important lessons have been learned in practice about the overall delivery capability of public institutions. It seems clear that some refinement of the three sphere system is required if South Africa is to attain Vision 2014, and that the system is already evolving in particular ways in response to those challenges. Any further institutional change must therefore take account of four realities present in the current context.
First disparities persist in service delivery, population density, urbanization, the distribution of income and economic opportunity by region and by locality, by gender and age, often according to spatial forms determined by colonial and apartheid spatial forms. In these areas access by the poor especially to essential basic services such as water, education, public health and social grants remains a challenge.
Second, the capacity of the state is unevenly distributed within the system, with those provinces and municipalities with largely rural characteristics or sparse settlements generally having less effective public institutions. There are also capacity challenges in particular sectors and national departments. There is thus a coincidence between weak state capacity and poverty in these areas, which hampers the possibility of achieving a sustained and total connection between the developmental state and the primary intended beneficiaries - the poor and previously disadvantaged.
Third, the three sphere system is a complex system to operate, which results in inefficiency, overlapping roles, long decision-making processes, weak information flows, and the dispersal of public sector skills and experience within the state. To operate the system requires multiple layers of effective political leadership and highly skilled public servants, huge investments of time in coordination, and very strong intergovernmental processes.
The complexity of the system has also grown as the developmental state has had to confront complex development issues that cut across the boundaries of spheres and require all of government responses. Issues relating to ASGI-SA, poverty alleviation, gender, youth, disability, heritage and culture, social cohesion, climate change, and JIPSA all require all of government responses. Furthermore, different frameworks governing the public service prevents the deployment of this already limited capacity to where it is most needed, as well as the creation of a common service oriented culture in the public sector as a whole.
Fourthly, concrete plans and budgets are delivered by provinces and municipalities. This means that national government must depend on the capacity of these spheres to in effect translate the goals of the Age of Hope into practical and measurable social and economic outcomes. It also means that provinces and municipalities can take their own decisions, in some cases different to those of national government. Where these two spheres do not have the capacity to deliver these programs national policy goals are put at risk.
The possibilities, limitations and risks of any future institutional reforms to the three sphere system will be determined by these four factors amongst others. For example, the existence of provincial and local government creates the opportunity for deepening democratic participation and responsiveness - because it brings democratic government and basic service delivery functions closer to the people - weak capacity at these levels to perform their existing functions makes further decentralization a great risk in the short term. If the response to weak capacity is to remove functions to higher levels of government, the consequence is that democratic accountability moves further away from people, state responsiveness and accessibility are thus reduced, with no guarantee that national government could perform these functions any better.
As regards the provincial system of government, there is a view that provincial service delivery is less effective than it needs to be and whilst the developmental roles of national government and local government within the developmental state are well defined and generally agreed, the developmental role of provinces is unclear, if not contested. Many provincial functions, it is often argued, could be better performed at national or local level. This would release massive public resources for reallocation to local government. In some ways this is borne out by the current Constitutional System in which although elected governments in their own right provinces raise little own revenue, depend on transfers from the national fiscus, and largely implement national policy. The largest portion of the national revenue goes to fund provincial functions.
Of the three spheres of government, provincial government is thus the only sphere whose actual need and existence is still contested ten years after democracy. It is also the sphere where the most significant institutional intergovernmental changes to its role are already taken place in practice.
Looking at the current political state of provinces, it is clear that provinces have very different capabilities as public institutions, may be evolving on different change trajectories, or present particular kinds of political challenges:
Certain provinces are struggling and in ten years have not made the value added contribution that was expected. Northern Cape and Eastern Cape fall into this category.
The majority of provinces are middling, in that they are by and large working, but their success rate is still below that expected of an entire sphere of government.
KZN and Western Cape. While they have relatively strong technical capacity, present special challenges for the ANC politically.
Gauteng is in its own category, because it is the smallest spatially, has the largest population and value add to the economy, is comparatively capacitated, and is evolving in a direction that puts a critical spotlight on the design parameters of the three sphere system
If further change to the provincial system is regarded as necessary to achieve greater democratic accountability, more effective public delivery, and more responsive government, then the following considerations must be borne in mind:
Changes to the provincial sphere will affect the other two spheres, existing legislation, and established systems, it will not happen in isolation.
There is no one perfect solution to the problems of state performance. Effective leadership, capacity, skills, values, resources, and systems are as important, if not more important, that institutional change.
The larger the change the greater the risk of instability in governance and service provision, and often solutions to problems in turn bring with them their own problems.
Managing change takes will, time, careful sequencing and very effective central coordination.
More fundamental change must be principle-driven, and in the current political context, the following governance principles stand out:
The central issue in South Africa that must be answered however whatever the degree of institutional reform is: What is the best way to organize and deploy on a massive scale the capacity of the developmental state to deliver the public goods and services that are needed to halve poverty and unemployment by 2014?
The three-sphere system will continually evolve to meet new challenges, whether or not fundamental change to the provincial system is envisaged. As regards the future of the provincial system of government there are basically three options:
The first option is to retain the system as it is. Provincial government would retain its legislative and executive roles. This has the advantage of continuity and stability. The provincial system has generated a decade of experience to build on and relative institutional stability. There are also changes within the system taking place in as much as certain provinces are already considering forms of organization with local government on a regional scale in order to integrate economic potential. The disadvantages are that uneven regional development and distribution of capacity will remain short term factors.
But it is clear that changes within the current framework of the Constitution would still be required in order to ensure the massive presence of the developmental state within community life in the country. The strategic focus for reform would then be on:
The second option is to remove the provincial system altogether, leaving a two-sphere system of government consisting of national and local government. Greater decentralization to local government under the current system would in any event eave provinces with largely a marginal, or coordinating role, with strong lean policy capability at the center and service delivery taking place at local level.
This model has the potential advantage of releasing significant resources and capacity for local government. This must be balanced against disadvantages such as departments would still have to be spatially decentralized to regional level, new forms of coordination with local government would be required, legislation would have to be amended, local government capacity would still have to be developed to take on new functions. The question of timing, sequencing and managing change are critical considerations.
The third option is a hybrid - a three sphere system but with fewer provinces. What exactly this would entail is uncertain, but it would mean more than simply redrawing provincial boundaries. Even if redrawing provincial boundaries was done this would still require a principled and conceptually clear understanding of what the role of the new provincial system would be and how it would differ from the current system. Bringing the area of the country under fewer provincial boundaries would still leave the question what is the developmental role of provinces unanswered. If only some areas are to become provinces, then which areas? If these are drawn around economic regions, then how will spatial inequality be addressed in other regions?
Since the floor crossing legislation came into effect in 2002, there have been two floor crossing windows in the National and Provincial Legislatures and in municipal councils.
The practical implementation of the legislation therefore gives us the opportunity to evaluate whether it is achieving the objectives envisaged when the laws were approved; whether there are aspects of the process of floor crossing that require some adjustment or whether the reasons that gave rise to its adoption are no longer as compelling as they were at that time.
The matter has also been raised in the National Assembly as a Private Members Bill has been tabled which proposes the scrapping of floor crossing. ANC comrades dealing with the matter need to be given guidance on how to address the issues.
Floor crossing was considered but not provided for during the deliberations on the Interim Constitution in 1993.
The issue was again considered in the deliberations on the Final Constitution
and although floor crossing was not provided for, an opening was made by the inclusion of a provision that allowed for ordinary legislation (as opposed to a Constitutional Amendment) to provide for floor crossing within a reasonable period after the new Constitution took effect.
The National Assembly duly established an ad hoc committee in February 1997 to consider whether such legislation should be passed. The Committee reported back to the House in June 1998.
The ad hoc committee considered three basic approaches to floor crossing viz. an absolute freedom to cross the floor; a prohibition on crossing the floor and a qualified freedom to cross the floor. The majority of the committee resolved that "it would be neither fair nor democratic for the ban (on floor crossing) to be lifted at that stage". It did however recommend that the ban be reviewed after the 1999 elections and that the case for reviewing the ban would be strengthened if the new electoral system included constituency elections.
It is interesting to note that at that stage, the National Party, the Freedom Front, the PAC and the ACDP supported an absolute freedom to cross the floor, whilst the Democratic Party supported a qualified freedom. The ANC and IFP supported the ban on floor crossing. Of all the parties, only the IFP has maintained its position.
The issue was raised after the 1999 elections by the DP and NNP who had subsequently merged to form the Democratic Alliance. They approached the Deputy President requesting that legislation be passed allowing them to merge in the National Assembly. The 2000 local government elections were contested by both these parties as the Democratic Alliance.
When this marriage fell apart, the matter became more urgent at a local government level as NNP councillors wanted to leave the Democratic Alliance and return to the National Party. This could only be done if floor crossing was provided. It was at this stage that the ANC agreed to support floor crossing. Failure to have done so would have resulted in an untenable situation where a large number of NNP councillors would have been stuck in a party they did not support for the next 3 years or would have had to resign their seats. It was felt at the time that provision should also be made for floor crossing in the legislatures in all spheres of government.
Both the arguments for and against floor crossing have been thoroughly discussed. However it may be useful to summarise some of the key points:
The main argument in favour of floor crossing derives from the notion that members of legislatures have a free mandate - the belief that irrespective of the electoral system, members are accountable to their constituencies or the nation as a whole and not to their parties. Supporters of this argument refer to the Constitution which states that the National Assembly is elected to represent the people and to ensure government by the people.
It is also argued that allowing MPs to cross the floor and keep their seats is consistent with the provisions of the Bill of Rights regarding freedom of opinion, expression, association and political choices.
Allowing MPs to cross the floor reduces the power of the party. If MPs are unhappy with a particular position that the party has adopted they can, in the last instance, escape party discipline by leaving the party and still keeping their seats.
Elected public representatives upon working with members of other parties may find that they identify more closely with another party to which they have now been exposed. Floor crossing enables them to join that party without loosing their seat. For example white public representatives may as a result of apartheid propaganda have had negative and false perceptions of the ANC. The floor crossing provisions allows such people after having been exposed to the ANC, to change their viewpoints and join the ANC.
In addition to these general arguments in favour of floor crossing, floor crossing as we currently have it can only occur during limited periods.
Arguments in favour of a limited floor crossing are as follows:
Arguments against floor crossing are largely premised on the belief that the voters are primarily voting for the party and not for the individual - even in the case of ward councillors at the local government level. Some of the arguments against floor crossing are:
Issues that have arisen out of the practical implementation of the floor crossing legislation,
The number of new parties in the National Assembly
In the 2003 window period, five new parties were created in the National Assembly. Of these only one, the Independent Democrats survived the 2004 elections. Similarly in 2005, 5 more new parties were created. Of these only Nadeco gained any representation in the local government elections the following year.
The National Assembly rules provide for each party to speak in every debate should they so wish. Financial support is also given by Parliament to each party. Considerable time and resources are wasted on parties that do not have any real electoral support and in some cases consist of only 1 member.
Members of the NCOP may not cross the floor as they represent parties in the provincial legislatures. Should floor crossing take place in a legislature, that legislature has to be reconstituted. The legislature's delegation to the NCOP must also be reconstituted despite the fact that there may be no change to the actual composition. In practical terms this means that affected office bearers have to be re-elected. This happened when the Western Cape delegation was reconstituted and the then Chairperson of the NCOP, who was a Western Cape delegate, had to be re elected.
A further impact for the NCOP is that a permanent delegate could loose their seat if the proportionalities change in the provincial legislature. This has happened in the case of NNP members. In one case the ANC got the extra seat and gave it to the NNP NCOP member who did not join the ANC. In another case, the seat was lost even though the ANC now had more members of the legislature but because of the proportionality calculations.
The DA has made an accusation that no ward councillor who crossed the floor was able to keep their ward in the 2006 elections. Although it would appear that a few councillors were able to do so, the 2006 local government elections showed that it was difficult for parties to hold onto wards gained through floor crossing. However generally in KwaZulu Natal and in some municipalities in the Western Cape, the ANC was able to maintain the council seats it had gained during floor crossing..
As already stated all the new parties created in the National Assembly in the 2003 floor crossing bar one did not return members to parliament in 2005. If the 2006 local government elections are any indication of voter support it is likely that the same fate awaits in 2009, those parties formed in the 2006 floor crossing. Opinion polls indicate public unhappiness with floor crossing.
As reflected above all opposition parties with the exception of the IFP supported floor crossing. Currently it seems as if all opposition parties are now opposed to it. The DA is attempting to mobilize opposition parties to lobby for the scrapping of floor crossing. Although excluded from this the ID have indicated that they are not in favour of floor crossing. This is likely to be because they fear loosing councillors in the next municipal floor crossing.
A charge was made before the legislation took effect that floor crossing would case instability if political control kept shifting due to floor crossing. Although this has not happened at provincial level it has happened in a number of municipal councils without adverse effect. The issue of the party achieving power wanting to change the leadership in the administration of that municipality is something that can be addressed in other ways.
The law provides a separate list of candidates for those seats affected by floor crossing. This list remains separate for the duration of a Parliament and cannot be reviewed or supplemented by a party. Parliamentary staff recommend that this floor crossing list be brought in line with the candidates list in terms of the Electoral Act.
Problems with determining the 10% threshold. The Cape High Court has held that the 10% is calculated at the beginning of the window period. Parliamentary staff have raised concerns with the obligations of the Speaker in this regard. Must the members who want to cross approach the Speaker en mass once they have achieved the 10%? If individual members of a party want to join another party but do not know whether there are enough members to make up the 10% requirement, can they approach the Speaker individually who would then have to advise them whether the threshold has been met? If the threshold has not been met the fact that the Speaker knows who wanted to leave a party but could not makes them vulnerable.
Floor Crossing also causes practical problems in Parliament regarding constituency and party support allowances.
Some comrades have been uncomfortable with some of the new ANC Public representatives particularly in the light of the historical role they may have played against the ANC and have questioned whether their conversion to the ANC is as the result of a genuine shift in belief or because of political expediency.
Sometimes in order to make up the required 10% threshold, we may take public representatives that we would not normally accept.
The ANC should develop a policy on what type of public representative should be accepted during floor-crossing. A more systematic training policy should be adopted to better integrate public representatives who have crossed the floor to the ANC into the structures of the ANC and the party caucus.
The ANC can decide that the reasons that gave rise to providing for floor crossing remain as they were and that the status quo should continue.
This would mean that there would be 2 floor crossing windows during the 5 year term of a legislature or municipal council and that an elected representative could join another party and keep their seat, provided the requisite threshold had been reached.
In the light of opposition to floor crossing in the media and from almost all political parties, if this option is followed we will have to go on the offensive in continuing to explain to our members and the public, the reasons for floor crossing.
The ANC is likely to be the only political party supporting floor crossing when the matter is debated in the National Assembly.
Changes that could be considered are:
Abolishing floor crossing would mean we revert to the position we were in prior to 2002. Members of a party who wish to join another party would have to resign from the legislature/council and it would be up to their new party to decide if a place should be found for them. This was the situation for example with Walter Felgate who resigned from the IFP and consequently lost his seat in the National Assembly. The ANC however gave him a seat in the KZN Provincial Legislature.
If floor crossing is abolished parties will not be able to merge or split in the event of a substantial reconsideration of their policies. They will also not be able to change the name of the party in the legislature until after the next election.
The issue is not that post-employment rules will prevent corruption. The principle issue is that people in priviledged positions or person with access to priviledged information should not use this to obtain benefits (shares, partnerships, jobs) which would not be available to others with similar qualifications or 'suitability' for the benefits conferred.
The appearance of impropriety in a closely-knit business society is the governing approach. For example, a chair of a portfolio committee investigates various options for the purchase of a major contract or makes oversight visits to an industry and then obtains share or obtain employment in that industry; Ministers determining policy in a particular area and then being recruited by the beneficiaries of that policy;
We are talking about the perceived "unfairness" of what is considered abuse of office regardless of whether there is any element of corruption.
In the recent past there has been public debate on the measures required to curb or manage conflict of interest that may occur when elected public representatives and government officials leave office or receive offers of employment from the private sector. Such measures should ensure the protection of the public interest such that no elected public representative or government official gains an unfair advantage as a result of his/her previous position, for a stipulated period.
At its National General Council (NGC) meeting in June/July 2005, the African National Congress adopted resolutions which seek to provide clarity on the regulation and participation of ANC members in business.
These resolutions state:
The NEC should develop protocols to regulate the conduct of ANC members in respect of their participation in business;
The NEC should also develop protocols to regulate the participation of public representatives and government officials leaving office, in business.
Such a protocol should include, among others, a "cooling off period", and a review by an appropriate government agency in order to eliminate the basis of suspicion and insinuation.
What purpose do post tenure rules serve? They seek to prevent office bearers and government officials conducting themselves in a manner designed to unfairly secure benefits for themselves or for the organization they will be moving to. It has been argued that former officials and office bearers usually accept employment or positions in organizations with which they were associated whilst in office. It is this situation that the NGC Resolution seeks to regulate. Indeed, in 2001 the Joint Investigating Teams recommended that: "Parliament should take urgent steps to ensure that high-ranking officials and office bearers, such as ministers and deputy-ministers, are not allowed to be involved, whether personally or as part of a private enterprise, for a reasonable period of time after they leave public office, in contracts that are concluded with the state".
The purpose of this document, therefore, is to attempt to address some of the issues raised in the NGC resolution.
The following are some critical issues that must be considered:
The situation at the local government sphere, however, presents a particular challenge, because even ordinary Councillors enjoy access to officials responsible for awarding contracts. Indeed, in many municipalities Councillors themselves do the awarding on the basis that they best understand black economic empowerment and affirmative action, and
- the Chairperson of the Commission on the Remuneration of Public Office Bearers;
- the Chairperson of the Public Service Commission; and
- an eminent South African drawn from civil society.
Two of the three members of the Tribunal already review and consider matters of either a remunerative nature or related to the declaration of interests of senior managers. Moreover, it is also important that we do not end up creating a whole new large bureaucracy.
This document seeks to develop an ethics regime wherein conflicts of interest, perceived or real, can be effectively managed. Perhaps it would be wise to begin by addressing certain false perceptions that may have already gained ground. This Section seeks to set out some of the challenges and conflicts faced in setting up such an ethics regime.
It is not the intention (nor has it ever been) to deny or prevent either elected public representatives or public servants from being gainfully employed once they leave office. It is also not the intention to infringe on their right to freely choose their occupation, trade or profession once they have left office. This is a right provided for in Section 22 of our country's Constitution. In an effort to address this matter, legal opinions have been sought from three different sources, viz.:
Briefly, their opinions can be summarized as follows:
Another significant challenge that requires consideration is how the ANC's own deployment policy will be adjusted to suit the post tenure rules, such that the deployment policy does not conflict with the rules. In addition, Parliament has seen the development of a considerable skills pool. This is probably also true of elected public representatives in the provincial and local government spheres, as well as in our pool public servants. There is a need to ensure the retention of these skills.
Proposals on the Regulations:
- allowing the prospects of outside employment to create a real or perceived conflict of interest;
- obtaining preferential treatment or privileged access to government officials and/or departments after leaving public office;
- taking personal advantage of information obtained in the course of official duties and responsibilities, and which has not become generally available to the public; and
- using their previous positions and contacts in public office in order to gain an unfair advantage in obtaining opportunities for outside employment.
Given that this regime would apply to members who have left public office it makes sense for this new system to be brought about either through amending legislation (i.e. Powers and Privileges, Executive Members Ethics Act, the relevant public service statute, etc.) or through the introduction of new legislation. Consideration would also have to be given as to whether appropriate sanctions and penalties should be provided in the event of contraventions.
Financial sanctions may be difficult to be identified.
People leaving public office should act in good faith or else criminal sanctions should be considered. The United States, for example, prosecutes individuals for a range of public office violations.