Judicial dreamers





On occasion, the highest court in the land can deliver a judgment that is truly baffling to simple-minded folk.

Last week, the Constitutional Court upheld the appeal of New Nation and others against a judgment of the Western Cape High Court on the Right of individuals to stand as independent in national and provincial elections. The court found that, “insofar as the Electoral Act makes it impossible for candidates to stand for political office without being members of political parties, it is unconstitutional”.

Should a citizen, for example Herman Mashaba, decide to run for election to the National Assembly he would previously have been obliged to register a political party, which could perhaps have been called the Herman Mashaba Is Great Party. Registration is easy and cheap, and it could be made even easier and cheaper.

But the learnt judges reasoned: “If it is an individual’s fundamental right to be free to associate with whomsoever she or he wishes, surely it must equally be one’s fundamental right to be free not to associate with anybody whatsoever.” Membership of a political party “comes with impediments that may be unacceptable … It may be too trammelling to those who are averse to control.”

A party “may be overly restrictive to the free-spirited … censoring to those who are loath to be straitjacketed by predetermined party positions. In a sense it just may at times detract from the element of self; the idea of a free self; one’s idea of freedom.”

The court determined boldly on this peculiar basis that the entire electoral system will have to be remade. It insisted that the new electoral system “must be in place well ahead of the next elections”.

It may be that the judges are quietly, but wrongly, confident that an oven-ready recipe is at hand, perhaps in the form of the neglected 2003 majority report of Frederik Van Zyl Slabbert’s commission on electoral reform.

Slabbert proposed a “mixed system” in which 300 members of the National Assembly would be chosen from 69 multimember constituencies. The remaining 100 “top-up” MPs would be allocated to restore proportionality “in general” between votes cast and MPs elected, as the constitution requires.

Parliament rejected this proposal and agreed instead with the minority report’s judgment that a closed-list proportional system, without constituencies, should be retained.

The majority proposal was in some respects an elegant solution to the challenge of combining some constituency accountability with broad proportionality. It does very little, however, to address the challenges faced by the “free-spirited” independents that our highest court champions.

What kind of candidates are unwilling to subject themselves to the minimal disciplines of party politics, such as drawing up a manifesto and acceding to internal accountability mechanisms in a party they have themselves created?

The overwhelming majority of such candidates will be eccentrics or egomaniacs. Many or perhaps most of them will base their campaigns on identity politics, ethnic division or xenophobia.

Even candidates depending on such triggers to rally support will need campaign organisation, and this implies powerful donors. This form of constituency politics encourages direct relationships between businesses and candidates. There is ample cautionary evidence that MPs are happy to bring bulging suitcases full of cash for their voters ahead of elections.

The electoral commission already struggles with our relatively simple electoral system. The proposed time frame of 24 months implies that the required constituencies can be summoned out of thin air, which reveals alarming unfamiliarity with the capacity of the current demarcation board.

The judges evidently failed to consult any of the voluminous writings about the world on how politicised boundary demarcation encourages violence, ethnic competition, gerrymandering, voter busing and other pathologies.

If it ain’t broke, why are the judges telling us to fix it?

• Butler teaches public policy at the University of Cape Town.

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