Judges and electoral systems

ANTHONY BUTLER: Advocates of electoral change want to cross out the people’s choices

Scholarship provides no grounds to reconfigure SA’s executive around a directly elected president

First published in BusinessLive 14 July 2022 and Business Day 15 July 2022

Changing electoral systems is dauntingly complex. One has to admire the courage of senior judges who hand down opinions in a field about which they know next to nothing.

As the result of a 2020 Constitutional Court judgment parliament is engaged in a futile attempt to amend the Electoral Act to allow “independents” to be elected to national and provincial legislatures.

For ordinary folk who believe “independent” is an adjective rather than a noun, it seems the court was referring to sociopaths or egomaniacs too deranged even to register a political party.

A few weeks back chief justice Raymond Zondo, wearing his presidential commission of inquiry hat, recommended that “consideration be given to making necessary constitutional amendments to ensure that the president of the country is elected directly by the people”.

This second proposal may be even worse than the first. In a parliamentary system the head of the executive is indirectly elected by the National Assembly, and is therefore vulnerable to a vote of no confidence. Our president thus closely resembles the prime minister in any other parliamentary country.

On the other hand, a presidential system imposes a deliberate division of policy-making and power between two bodies, the legislature and the executive, which are elected separately.

But direct presidential election, if it is to be meaningful, requires changes to the organisation of the executive and its relationship to other branches of government. It is incompatible with the parliamentary vote of no confidence and the selection of most of the cabinet from the legislature. Presidential systems incorporate mechanisms to prevent the removal of a popularly elected president except under exceptional circumstances.

Academic studies of political systems broadly favour parliamentary executives. Influential empirical work suggests parliamentary systems are generally associated with better outcomes in economic and human development.

Presidential executives shift the focus of political activity away from the legislature, weaken political parties and fragment interest group politics. In postcolonial Africa the replacement of parliamentary government with presidentialism has all too often resulted in arbitrary and personalistic power, the revoking of term limits, deeper money politics and worse state capture.

Presidentialism also empowers populists. The rise of populism is constrained by the complexity of SA’s political system and by the need to form broad alliances within a governing party or coalition. This means individual leaders cannot easily campaign on the basis of ethnic or xenophobic appeals.

SA presidents have not lacked the necessary power to effect change. On the contrary, both Thabo Mbeki and Jacob Zuma — and their palace elites — managed to accumulate power in an alarming way in their second terms, and both were demonstrably reluctant to cede it as their terms drew to a close. In both cases it was the governing party that dispatched them and their factions, through the implicit threat of a parliamentary vote of no confidence.

The recourse to this threat has been a strength of our parliamentary system, not a weakness.

Ordinary people have also not lacked the necessary power to effect change. The ridiculous complaint of many commentators, and perhaps of Zondo, seems to be that citizens have declined to elect the right parties — so we should change the system. In reality, should voters continue to diversify their support national coalition governments will soon bring change to the dynamics of the presidency, and to the relationship between the legislature and executive.

SA’s biggest problems — economic exclusion, the fusion of money and power and the organisation of political activity around the extraction and distribution of rents — are not challenges that will be resolved by the institutional fix of direct presidential election. The weight of meticulous scholarship provides no grounds whatsoever for SA to reconfigure its executive around a directly elected president. If only our judges would consult it.

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

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