Kevin Malunga
As the ANC policy national conference goes on in Midrand, the much-vaunted philosophical challenge as to who monitors the monitor has to be reconsidered.
By monitor, I am referring to Parliament, which consists of the National Assembly and the National Council of Provinces.
The recent admonition of the lax standards in the legislature by Speaker Max Sisulu echoes a widely-held perception of the legislative function in SA.
The proportional representation system – which entails the use of a list system – is the product of a compromise reached during the constitution-making process to avoid the waste of votes and suppression of minorities that result from the first-past-the-post system where someone can be elected to Parliament with a majority of 51 percent despite the fact that 49 percent voted against them.
The purpose of an election is to select public representatives who articulate and implement the voice of the electorate.
We use the proportional representation system which entails that political parties provide a hier-archical list of preferred candidates, and their proportional showing in the election determines the number of seats a party gets.
This results in MPs being more accountable to their political party than the electorate.
The ANC’s legislatures and governance policy document – which addresses issues relating to Parliament – is silent on any amendments to the electoral system. This critical document has been sidelined by the debates on the second transition and nationalisation.
In the process, an important issue has been dwarfed by the more media-worthy issues surrounding succession.
While it is unlikely to happen now, the time is apposite to have another look at the electoral system 18 years into our democracy.
The ANC policy conference would do well to consider the efficacy of measures that will give the electorate a greater hand in removing non-delivering MPs.
The German election system is one we have to study to solve our dilemma. It combines a classic first-past-the-post system with proportional representation.
Each person casts two votes on a single ballot paper.
In the first vote, voters elect a candidate in their electoral district to the Bundestag (parliament’s lower house) and the winner takes up the district’s seat.
In the second vote, people choose their preferred party from those participating in the election via a complex system of proportional representation.
In each of Germany’s 16 states, parties draw up “state lists”.
Parties are awarded a certain number of seats per state depending on the proportion of votes they receive. When all the first and second votes have been counted, the number of direct candidates is subtracted from the number of seats won through the second vote and the remainder is awarded to politicians in the order they appear on the list.
So, if a party scores three “direct” seats through the first vote but is eligible for 10 seats through the second vote, the top seven names on the party’s state list would be awarded Bundestag seats.
However, if a party obtains more direct seats through the first vote than its proportion of seats through the second vote would justify, it keeps these seats as “overhang” seats.
Pretty complex, but the voter has a direct say and votes are not wasted. This system has been adopted in various forms in Lesotho, New Zealand and Brazil.
SA has a hybrid of this mixed member representation at local government level.
It goes without saying that when elected representatives feel the wrath of the voter at the ballot box they are less likely to behave with the impunity that Sisulu lamented such as non attendance of critical sessions, some ministers’ failure to respond to parliamentary questions and so on.
Sisulu lamented that MPs were drafting poor quality legislation and not exercising due diligence in ensuring that legislation was rigorously tested. He correctly observed that the poor quality of legislation was often the consequence of inadequate scrutiny and that, as the subject matter of legislation becomes more sophisticated and highly technical, Parliament and MPs must be more professional.
Further, he observed that the report of an independent panel assessment noted that Parliament did not have sufficient capacity when it came to drafting and amending legislation and that the constitutional and legal services office was instructed to establish a legal drafting unit.
The Speaker is right on the money and implementing his suggested interventions will go a long way.
However, at party policy level a more decisive intervention will be to ensure that it stops sending the wrong people to Parliament.
It would serve the ANC well to put more individuals with training in economics, law, science and policy in its parliamentary ranks.
Cadre deployment, for all its sins, is not unique to SA.
It is done in nearly all established democracies.
After all, who would entrust those they distrust or with whom they have dissimilar political ideol-ogies to represent them?
US President Barack Obama and British Prime Minister David Cameron also do it, albeit strategically. The question is, who you deploy?
If a clueless individual is sent to Parliament, you will get less than satisfactory results.
A critical intervention would be to include the mandatory training of deployees to Parliament, not as a simple induction, but as a permanent fixture of the parliamentary system. We have seen portfolio committees deriving immense benefit from being addressed by experts. There is no reason why this should not be a permanent fixture of the parliamentary process.
It’s not all gloom.
We must commend the success of the portfolio committee system in both the National Assembly and National Council of Provinces.
It offers a great oversight mechanism as a check and balance to sometimes dysfunctional government departments or state-owned enterprises.
Given the dominance of the ANC on the political landscape, the national policy conference is probably the right place to re-examine the role of the legislature.
The head of policy, Jeff Radebe, has correctly asserted that the ANC plays a leading role in the transformation of our society and has enjoined all sectors of our country to engage in vibrant debate analysis and self-criticism.
It is lamentable that the level of public debate on the policy documents has been minimal.
Given the ANC’s towering majority in Parliament, what is approved at this week’s conference is most likely going to become the law of the land.
Whatever the sideshows and debates on succession and so forth may be, the party may also be wise to take heed that it should not operate simply through its large majority in Parliament, but persuade the electorate that it is doing the right thing. The need to monitor those who monitor us could not be more profound as it is now.
l Advocate Kevin Malunga works on policy development in the Department of Justice and Constitutional Development.