IDASA Political Information & Monitoring Service

 

Submission to the Joint Constitutional Review Committee

 

FLOOR-CROSSING

 

INTRODUCTION:

 

The annual Constitutional Review undertaken by the Parliamentary Joint Constitutional Review Committee offers an important and timely opportunity for South Africans to reflect on the bedrock of the rule of law in South Africa, the Constitution of the Republic.  In 2006 the Parliamentary Review of the Constitution will coincide with celebrating ten years of democracy in South Africa, framed by the Constitution of 1996.  This submission on the part of IDASA aims to contribute to the debate and review of Floor-Crossing legislated in the Constitution through the Constitution of the Republic of South Africa Amendment Act 18 of 2002 and the Constitution of the Republic of South Africa Amendment Act 21 of 2002.

 

This debate has recently been brought into focus by the submission of a Private Members Bill aimed at scrapping floor-crossing forwarded under the auspices of a number of opposition parties, and President Thabo Mbeki’s comments in the house that the “parties in Parliament really should discuss [floor-crossing]” and “say whether the conditions which necessitated the institution of this legislation... have changed such as we then need to change the legislation”.  Significantly, when asked whether the annual Parliamentary Constitutional Review might be one means of discussing the matter, the President responded that “we might want to take advantage of [the Review] to look at this”[1]. 

 

The view that the Constitutional Review Committee would be the correct forum in which to debate the matters of the electoral system and floor-crossing was also asserted by Smuts Ngonyama, the Head of the African National Congress (ANC) Presidency in 2005, when he wrote in the Cape Times that “All floor-crossing and other electoral legislation is open to the normal Parliamentary review processes… Should any party or sector of society feel [they are unfair] they should initiate a review process”[2].

 

The debate around floor-crossing is an important one, but one that has largely been framed in official discourse by political imperatives.  The Constitutional Review Committee offers a forum in which the pros and cons of the regime, as currently legislated, can be debated in a non-partisan manner.  This submission aims to contribute to a balanced debate on the subject without fear or favour to any political party.

 

South Africa’s system of democratic, representative governance as framed by our Constitution is a credible and legitimate system premised on one citizen, one vote.  It came to pass after a long period of anti-colonial and anti-apartheid struggle.  The founding provisions of The Constitution of the Republic of South Africa (1996) include the values of “Universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of government, to ensure accountability, responsiveness and openness” (Chapter 1, 1(d)).  Chapter 3 of the Constitution requires that all spheres of government must “provide effective, transparent, accountable and coherent government to the Republic as a whole” (41(c)).  Chapters 4, 6 and 7 of the Constitution prescribe the powers, duties and obligations of the three spheres of government in relation to ensuring participatory, transparent and accountable government.  These prescriptions include the obligation on the part of Local Government to “provide democratic and accountable government for local communities”, and “to encourage the involvement of community and community organisations in the matters of local government” (152 (a) and (e)).

 

This submission will argue that the system of floor-crossing, as currently legislated in South Africa, in the context of a electoral system premised on proportional representation, has had the unintended effect of undermining the spirit of open, accountable, transparent and participatory democracy as prescribed by the Constitution of the Republic of South Africa.

 

The purpose and effect of the floor-crossing legislation is to permit the defection of members from the party under whose aegis they were elected, as well as the merger and subdivision of political parties at all levels of government.

 

Floor-crossing as a phenomenon connects to a number of broader, equally complex issues and debates relating to the principles of “representative”, “accountable” and “participatory” democracy, as prescribed by the South African Constitution; the merits of electoral systems (proportional representation, first-past-the-post, and mixed systems) and their application in a transitional South Africa; and the accountability of public representatives to their constituents, the voting public – to name just some of the intersections.

 

Floor-crossing is a feature of many so-called “established” and “developing” democracies.  But such an observation can not serve as a justification of the regime, as practised in South Africa, in and of itself.  One needs to examine each occurrence of floor-crossing according to the electoral system within which it is practiced and, in turn, its institutional manifestation and legal application where it occurs.  This submission will assess floor-crossing as legislated in South Africa.


 

Political Background

 

After the formalisation of the Constitution in 1996, floor-crossing was forbidden by the existence of an anti-defection clause embedded in the Constitution.  The clause was included because the South African electoral system is a purely proportional one, except in local government where the system is a mix – proportional representation and directly elected ward councillors. It was felt at the time that permitting representatives to change parties would disturb the electoral balance chosen by the electorate. 

 

The issue of floor-crossing came to a head with the original incarnation of the Democratic Alliance (Democratic Party + New National Party + Federal Alliance = DA) thrashed out in mid-2000, under the pressure of the looming local government elections.  Due to the Constitutional anti-defection clause parties could not legally merge between elections, and as such the DA negotiations were pushed through in order for the two parental parties to be able to contest the December elections as one organisation. 

 

Subsequent to the election the DA existed legally at the local level.  At provincial and national level the three partners, the Democratic Party (DP), Federal Alliance (FA) and New National Party (NNP), remained legally separate – sitting separately in the legislatures; receiving separate allocations of public money, etc – but operated as one entity – caucusing together; voting as one, and so forth.  In order for the DA to constitute itself as one party in these two spheres of government some form of floor-crossing would be necessary for the respective members to abandon their old incarnations and embrace their new identity.  Alternatively the founding parties would have to wait for the next national and provincial poll in 2004 to formalise the relationship through the ballot box.

 

A bill to allow for floor-crossing started as a DA backed initiative. Veteran DP politician Colin Eglin was among those who as long ago as 1994 had championed crossing-the-floor traditions and the DA itself in 2001 submitted proposals to Deputy President Jacob Zuma and the Speaker’s Office on how best to lift the anti-defection clause.

 

At this stage the measure did not find favour with the ANC, as the DA political initiative was perceived within Alliance circles as the congealing of a race and class-based, right-wing political opposition[3].  In the aftermath of the NNP’s withdrawal from the Democratic Alliance in 2001, the political gains potentially accruing to parties changed, and the ANC, together with the NNP, DA and FA, commonly foresaw potential gains to be accrued through the promulgation of floor-crossing legislation.  ANC chairman Mosiuoa Lekota said that the ANC had been discussing the defection as a means “for some political realignment…and the break-up of racial power blocs”[4].

 

The NNP leadership wished to extricate the party from the DA with the explicit intention of formalising alliances with the ANC at all levels of government. However the NNP was trapped in an alliance from which it could not legally withdraw until the 2005 elections at the local level. 

 

The DP, NNP and FA’s initial proposal to circumvent the anti-defection clause, now championed by the ANC, DP/DA, NNP and FA, instead of formalising the DA at the Provincial and National level, now had the potential to unravel the DA at the local level as NNP councillors elected on the DA ballot jumped ship to a reconstituted NNP. However, the DP continued to support the legislation due to the short term gains to be accrued at the Provincial and National levels where some disillusioned NNP representatives continued to promise alignment with the new DA.

 

However, the constitutional requirement of proportionality at local government level meant that the scrapping of the anti-defection clause at this tier of government would require a constitutional amendment. This raised the stakes of the whole issue, and brought into sharp focus the alleged political motivation behind the proposed amendment.

 

All members of the NNP and DP were elected to municipal councils as DA councillors and the lifting of the defection ban for a short period would allow those who wished to leave the alliance and serve as members of the NNP to do so. The alternative, the bills proponents argued, would be scores of municipal by-elections across the country.


 

 

Legislative Background

 

The politicisation of the process and the widespread perception in the public that the bill served the narrow expedient politics of self-serving representatives delayed the promulgation of the bill in the 2001 Parliamentary term.  However in June 2002 three legislative amendments and one bill were tabled in Parliament to facilitate floor-crossing: the Constitution of the Republic of South Africa Amendment Act 18 of 2002 (“the Constitution Amendment Act”);  the Local Government: Municipal Structures Amendment Act 20 of 2002 (“the Municipal Structures Amendment Act”);  the Constitution of the Republic of South Africa Second Amendment Act 21 of 2002 (“the Constitution Second Amendment Act”); and the Loss or Retention of Membership of National and Provincial Legislatures Act 22 of 2002 (“the Membership Act”).

 

The composite laws stated the following requirements for legal defection:

 

The result of defection:

 

280 (or 86%) of the 320 members of Parliament present on the day the legislation came before the House voted in favour of the bills, passing them into law.  The legislation was supported by the ANC, DP, and the NNP.

 

Constitutional Court Challenge

 

The passing of the four bills in Parliament was followed by an urgent application led by the United Democratic Movement (UDM) to the Constitutional Court challenging the constitutional validity of the legislation.  The application (to which Idasa was Amicus Curiae) aimed to have the legislation set aside.  Idasa’s submission to the court argued that allowing for floor-crossing would undermine the representation of voters’ interests as communicated through the proportional representation formula, in turn undermining the Constitutional principles of participatory and representative democracy.  The UDM argued, amongst others that the legislation compromised the Constitutional requirement that the electoral system should allow for “in general, proportional representation”.   In addition it argued that smaller parties would be negatively affected by the legislation as it encouraged “cherry-picking” where larger parties offer more attractive positions to members of smaller parties and so lure them away from their party.

 

The Constitutional Court indicated that it would take a non-interventionist stance in the face of Constitutional Amendments that have been passed according to proper procedures.  However, the Court held that there were certain technical deficiencies related to the legislation providing for floor-crossing at a national and provincial level.  This meant that Parliament was required to redraft such legislation and execute a constitutional amendment. The court further ruled that the first window period for crossing of the floor at local government level would go ahead on 8 October 2002.


 

FLOOR-CROSSING IN PRACTICE:

 

2002 Municipal Floor-Crossing

 

A total of 555 municipal councillors crossed the floor during the 15-day window between 8 and 23 October 2002.  The DA was disproportionately affected with the loss of 417 councillors to the New National Party (340), the African National Congress (51), Independents (19), the Sport Party (2), the Inkatha Freedom Party (1), Phumelela Ratepayers Association (1), the Potchefstroom Inwonersvereniging (1), the Breedevallei Onafhanklik (1) and the Universal Party (1).  The NNP gained a total of 354 councillors.  The shift from the DA to the NNP, made up of 239 proportional representation and 118 ward seats, represented 61 percent of the total number of councillors who crossed the floor.

 

The African National Congress gained 104 councillors elected through the proportional representation section of the ballot and a further 24 ward seats. A major shift to the ANC was from the United Christian Democratic Party, which lost 21 municipal councillors who defected to the ANC in the North West province and one in the Northern Cape.  The DA lost 51 councillors to the ANC nationwide.  Concurrently, the ANC lost 16 councillors to other parties, while the DA gained a total of 17 councillors from a cross-section of political entities. 

The reincarnation of the local NNP was followed immediately by an alliance with the ANC and the delivery of some DA municipalities, most notably the City of Cape Town, to ANC-led alliances.  The ascendant ANC benefited most from the 2003 floor-crossing period, extending and consolidating its position relative to the Official Opposition, while benefiting from further fragmentation and discord within the broad opposition.

 

2003 National and Provincial Floor-Crossing

 

The 15 days that followed the opening of the window period on 28 March 2003 saw 23 MPs and 21 MPLs defect to various parties and while others formed new parties[5]. Nationally, the defections during this window period had a significant impact within the National Assembly. Provincially, KwaZulu-Natal and the Western Cape provinces were most affected.

 

Significantly, as a result of defections from the UDM to the ANC, the ANC increased its representation to 275 thereby gaining a two-thirds majority in the National Assembly. The defections also had a far-reaching effect on smaller opposition parties. The UDMs representation in the National Assembly was reduced from 14 MPs to 4 MPs. The DA on the other hand benefited substantially during the window period. Its representation increased to 46 seats in the National Assembly with MPs mainly defecting from the NNP to the DA.

 

In addition, the number of political parties represented in the National Assembly was increased to 18 after 5 new parties were formed during the window period.

 

Provincially, the ANC gained an outright majority in the Western Cape legislature following defections of NNP and UDM MPLs to the ANC. Only one new party was formed in the Western Cape namely the New Labour Party which has been started by ex-Premier Peter Marais.

 

In KwaZulu-Natal the ANC increased its representation by three seats, while the IFP lost two MPLs and the DA one respectively.  The Peace and Development Party was established as a new political entity through the floor-crossing window. The NNP lost all representation in the legislature and ceased to exist in KZN.

2004 Municipal Floor-Crossing

 

In September 2004, 460 councillors of South Africa’s 8951 councillors crossed the floor to new parties using the defection window. 

 

The ANC was the major beneficiary of the floor-crossing haemorrhaging winning over 330 councillors, the majority from the NNP.  The DA came in second with 66, but lost 46.  The UDM's loss was substantial - 54 crossed the floor and only one councillor joined the party. The Inkatha Freedom Party (IFP) lost 25 and gained 8. The Pan Africanist Congress (PAC) gained two new members, but lost 22. The African Christian Democratic Party (ACDP) lost 13 and gained 5. The Independent Democrats lost no councillors (it had not existed in 2000 and had no councillors) and it gained 39, ostensibly making it the “fastest growing” political party. 

 

2005 National and Provincial Floor-Crossing

 

In total 25 MPs (of 400) and 26 MPLs (of 480) used the window of opportunity to defect to existing or new parties.  The New National Party’s Federal Council decision to collapse into the ANC was carried out largely according to plan, with all seven of the party’s MPs crossing to the ANC, as well as all but one MPL moving to the ANC.

 

 The movement of NNP MPLs to the ANC in the Western Cape meant that the ANC governed the province outright for the first time; an outcome they have been unable to achieve through elections.

 

The general trend was a further fragmentation and weakening of the opposition and the real and relative strengthening of the ruling ANC.  The

ANC’s national representation rose from 279 MPs to 293.  5 new parties were created in the National Assembly and more in the provinces.

 

Internal party problems in both the Inkatha Freedom Party and the United Democratic Movement, relating to disaffection with leadership and stalled reform, manifested themselves in break-away groups from both parties.  The

National Democratic Convention (NADECO) was formally instituted when 4 IFP MPs and 4 MPLs crossed the floor to form the new party.  Similarly the

United Independent Front (UIF), led by the former Deputy Leader of the UDM was formed through the defection of 2 MPs and 4 MPLs from the UDM.


 

TRENDS AND CONSEQUENCES:

 

In total 1100 public representatives have crossed the floor since the inception of floor-crossing in 2002.  It has resulted in changes of administration in two provinces and in a plethora of municipalities.

 

The pattern of floor-crossing over the total period has generally resulted in the strengthening of the ruling party’s representation to the detriment of the opposition.  The coherency of opposition has not only been undermined by declining representation but by the further fragmentation of the opposition in legislatures.

 

The South African system of representative democracy is premised on proportional representation (PR).  Glenda Fick, of Wits University’s Law School, has observed that “The South African electoral system is valued for its simplicity... its exclusivity (all votes count, there are no votes that are excluded) and its representivity (the electoral system is capable of accommodating a wide range of political parties and issues in a legislative body, thereby giving effect to multi-party democracy)”[6].  In national and provincial elections the total number of valid votes cast, constitutes 100% of the vote.  Subsequent to elections, the votes accruing to each party are tallied proportionately, and seats are assigned accordingly in line with a formula for representation[7].

 

When an individual MP crosses the floor it distorts the balance of representation as determined by citizens through the ballot box.  Fick observed that “One difficulty presented by… South Africa’s floor-crossing provisions [is to] permit the outcome of an election to be changed by the subsequent actions of individual members of the legislature between closed-list [proportional representation] elections.  Such a system translates the electorate’s preference for a particular party during the election into a number of seats.  If politicians are subsequently able to change this number by crossing the floor, the political will of voters is flouted”.[8]

 

In the National Assembly each of the 400 seats represents approximately 0.25% of the vote.  In 1999 15,977,142 valid votes were cast in the National component of the election.  In this context each National Assembly seat accounted for 39,943 votes. In the context of the 2004 elections, when 15,612,667 valid votes were cast, each seat accounted for the representation of 39,032 voters.  Consequently it can be argued that the 23 MPs who crossed the floor in 2003, and the 25 MPs who crossed the floor in 2005, nullified the voter intention of 918,686 and 979,792 voters respectively.  These voters represented 5.75% and 6.25% of the valid votes cast in the respective elections.

 

At the local level, South African utilises a mixed proportional representation and first past the post system.  Ward councillors are directly elected by communities and are accountable to their communities at election time.  If a ward councillor resigns mid-term, a by-election is held, retaining the electoral balance as dictated by voters.  Currently, floor-crossing allows ward councillors to unilaterally change the representation accorded to their constituents without recourse to the will of the community.

 

Opinion polls have shown consistently that the effects of floor-crossing do not channel public opinion.  In other words, a 2% shift toward a party through floor-crossing does not necessarily reflect a concurrent shift in voter intention towards that party[9]. 

 

Electoral performance can make a case for serious distortions in representation relative to the will of the electorate: the NNP effectively came off a base of zero in the 2002 local government floor-crossing window, and finished with representation of over 340 councillors. Yet this “increase” in representation coincided with the party’s most precipitous decline in support, as evidenced in the 2004 election results when the NNP lost 76.5% of the vote that had accrued to it in 1999.  Moreover the proliferation of small, new opposition parties in all legislatures has not held up to public scrutiny.  Of the five new parties formed in the National Assembly through the 2003 floor-crossing window, only one, the Independent Democrats, was returned to the legislature through the 2004 election.

 

The 2006 Local Government election results for Cape Town highlight further distortions in representation:  Through two Local Government floor-crossing windows the ANC increased its representation in the 200 member city council from 77 seats (on the back of 38.54% support in the 2000 elections) to 105 seats (or 52.5% of representatives).  The DA saw its representation shrink from 107 seats (53.49% support in 2000) to 70 (35% representation).  In the 2006 election the ANC was returned to an expanded 210 seat council with 81 seats representing 37.91% of the 2006 result.  The DA won 90 seats with 41.85% of the vote.  The effect of the two defection periods in the first term of Local Government thoroughly skewed representation for the two major parties in the City of Cape Town council.  When held up to public scrutiny through the ballot box, the correction was significant.  Equivalent distortions in representation are evidenced through elections data for other legislatures in all three spheres of government.

 

Floor-crossing moreover undermines the principle of participatory democracy envisioned by Constitution: representatives shuffle across the aisles of power without any imperative to consult, or be held accountable to citizens, or their opinions.  It is reasonable to assert that for each seat swapped in the National Assembly, the voter intention and representation of 39 032 citizens who went to the polls in 2004 is nullified, undermining the constitutional provision for the equality of all votes and voters, and the right to representation. 

 

Floor-crossing also has a substantive impact on the provision of public money to political parties through the Represented Political Parties fund as administered by the Independent Electoral Commission.

 

The IEC formula for allocating funds (90% proportional, 10% equitable) is applied below.  For the purpose of the exercise below a hypothetical sum of R10million is dispersed through the fund according to the applicable formula: 

 

Equity: The equity allocation is divided among the provinces according to the proportion of seats that province has in relation to the total number of provincial seats.  There are 430 seats in all nine legislatures; the Western Cape legislature which has 42 seats thus receives 9.767% (42/430) to be disaggregated equitably between the parties represented in that legislature.  In other words if R1m is to be distributed through the equity component of the formula, the Western Cape will receive R97, 674.42 which is then divided equitably among the parties represented in that chamber.  This scenario is repeated across the other eight provinces.  The equity component of the allocation formula does not take into account representation in the National Assembly.

 

Proportional: The proportional allocation is applied according to the total representation of each party across all nine provincial legislatures (430 seats) and the National Assembly (400 seats).  For example the African Christian Democratic Party (ACDP) prior to floor-crossing in 2005 had 15 seats across the ten legislatures.  The formula would assign the ACDP R18, 072.29 if R9m were allocated through the proportional component of the formula (15/830 x R9, 000, 000). 

 

In practice the current formula favours larger parties in the application of both the equitable and proportional components of the allocation.  Parties with representation across all 3 or more provinces receive a larger sum of the equitable component of the fund than parties with regional representation.  It is in this way that the ACDP currently receives 30% more of the equity transfer than the Independent Democrats (ID), despite the fact that the ID won more votes than the ACDP in the National component of the election.  Similarly, the ACDP which had 8 MPLs in 6 legislatures prior to the floor-crossing window received a larger share of the equity transfer than the IFP who had 32 MPLs, but only in 2 legislatures. Parties with representation in the National Assembly but without any representation in the provinces (e.g. Azanian Peoples’ Organisation - AZAPO) receive no money through the equity transfer.  Given that the proportional transfer weighs provincial and national seats equally, a party like AZAPO which received sufficient votes in the National component of the general election to garner a seat in the house (0.25% of representation, or 1/400, in the NA) receives 0.12% (1/830) of the proportional transfer, and none of the equity transfer. 

 

Floor-crossing has further distorting effects on allocations under the current formula.  The 2005 defection period resulted in a number of single member parties in both the national and provincial legislatures.  The application of the equity component of the formula at provincial level only means that single member parties in provincial receive larger shares of the total fund than single member parties in the National Assembly who, if they have no provincial representation, receive nothing from the equity transfer.  The provincial bias of the equity component also means that a new party like the United Independent Front with 2 MPs in the National Assembly, but six MPLs across 4 provincial legislatures will now receive a larger share of the total fund than the United Democratic Movement who have 6 MPs and 5 MPLs, but importantly only in two provinces. 

 

The table in APPENDIX 1 disaggregates the hypothetical dispersal of R10m through the fund as it would apply after the 2005 National and Provincial floor-crossing period.

 

The application of the formula shows significant distortions.  One example is the fact that the Christian Party, a one person party in Mpumalanga (formed through the defection of the single representative of the Freedom Front Plus) that has never contested or won representation through an election, accrues more than three times the amount of money allocated to AZAPO, a party that won sufficient votes in the 2004 elections to win representation in the National Legislature.

 

Public money, in this way, is afforded to new parties formed through floor-crossing although these parties have not tested their ideas with the electorate.  If citizens do not approve of new parties receiving public money, they must wait until the following election to vote them out their positions.  In the interim millions of rands of public money is arguably dispersed in a problematic and unaccountable manner[10].

 

Floor-crossing also exacts punitive costs to the public purse through the fragmentation and contingent proliferation of parties.  Each new party formed through floor-crossing at National and Provincial level receives funds to support their legislative activity (administration, research, etc).  The leaders of the new parties also receive higher salaries accorded to the status of “party leader”. 

 

Public Opinion, Public Trust, Political Culture and Participation

 

10.3 Do you approve or disapprove of Parliamentary representatives leaving their political party and joining another party, also known as “floor crossing?”

 

 

 

 

Black

Coloured

Indian

White

Total

Approve strongly

18

12

8

5

16

Approve somewhat

16

20

9

14

16

Disapprove somewhat

21

35

21

17

21

Disapprove strongly

41

27

58

57

42

Don’t know

4

6

2

7

4

Refused

*

1

1

*

*

Source: http://www.washingtonpost.com/wp-srv/politics/polls/vault/stories/sapoll_10years.pdf 

 

 

 

 

 

 

For all the reasons highlighted above, it is not surprisingly many citizens feel aggrieved by the system of floor-crossing as it is currently legislated in South Africa.  A survey released by the Washington Post, Kaiser Family Foundation and Harvard University in 2004, asked citizens Do you approve or disapprove of Parliamentary representatives leaving their political party and joining another party, also known as ‘floor crossing’?”  Results indicated high levels of antipathy towards defection:  32% of respondents indicated “some” or a “strong” level of approval for floor-crossing.  In contrast a total of 63% of respondents indicated “some” or “strong” disapproval of the regime.  The largest group of respondents, 42% of the sample, disapproved “strongly”.

 

Data also suggests that floor-crossing reinforces perceptions of alienation among sections of the South African voting public.  In 2004, turnout of voters in KwaZulu Natal and the Western Cape, the two provinces most effected by the 2003 national and provincial defection period, registered the lowest levels of voter turnout for polls across the country, 73.51% and 73.05% respectively. 

 

When weighing up the advantages of exercising democratic citizenship with spending the morning in bed on Election Day, it must be tempting for supporters of smaller parties to veer for the latter when the net beneficiary of floor-crossing at all levels has been the ruling party at the expense, and fragmentation, of opposition in toto.   The ANC, effectively protected by the clause requiring 10% of a caucus to cross before any individual may move, is yet to lose a national or provincial seat in any legislature through floor-crossing.  Unsurprisingly, the system is perceived as unfair.

 

Voter apathy in the context of a PR system has a substantive effect on electoral outcomes.  Voters impact on the result whether they vote or stay at home.  If 2 people vote or if 20 million people vote, the sum of the votes is formulated into a 100% figure and divided up proportionately.  When people stay at home they thus increase the proportional and representational “power” of every vote that is cast. 

 

There is also an argument to be made that floor-crossing is bad for internal party politics.  The 2005 floor-crossing window saw, for example, the IFP, a party already in electoral decline, haemorrhage representation to the newly formed National Democratic Convention (NADECO) - a party that ironically has never contested an election, but now holds representative power in two spheres of government.  Representatives who have left the IFP for NADECO have cited various reasons for their departure: from clashes with the leader of the party, to a lack of vision on the part of the organisation. 

 

The defection of these members from the IFP has robbed that organisation of an important internal debate, and one which potentially could have changed or renewed the organisation.  Floor-crossing encourages disaffected members to withdraw from party disagreements, sucking the life-blood from the internal debates that drive political parties to remain relevant to the concerns, grievances and aspirations of citizens more generally. 

 

The temptation to jump ship rather than engage one’s colleagues in substantive debate appears to be an increasing reality in South African politics.  This is unhealthy in the context of a developing political culture.

 

All this is compounded by the context of an ongoing process of consolidating democracy.  For democracy to sustain itself, it has to win the trust of its citizens.  In the context of a transition from authoritarian rule, this project has to assert itself in opposition to the lived memories and experiences of institutional impunity.  

 

Current data suggests that Parliament’s long haul towards establishing legitimacy in the eyes of the public has been largely successful, but it remains work in progress.  The 2005 Afrobarometer survey found that 23% of citizens trusted the institution of Parliament “a very great deal” while a further 29% trusted it “a lot”.  The 2004 Washington Post/Kaiser Foundation survey reported that 45% of respondents had a “great deal” or “quite a lot” of confidence in Parliament.  The largest single segment, 30%, remained ambivalent, indicating “some” confidence in the institution; a further 23% indicated “not much” confidence or “none at all”.

 

Perceptions of expedience driving defection, the distorting effects of floor-crossing on representation and participation, the apparent link between rising levels of voter apathy and floor-crossing and the negative effect of floor-crossing on internal party politics are trends that we should all worry about.  The contradictions arising at the intersection of a proportional representation, party list electoral system and floor-crossing, as currently legislated, indicate the need for either electoral reform, or the reform or scrapping of floor-crossing. 

 

Data clearly indicates that the citizens of South Africa care dearly about this.  The commitment to addressing these grievances on the part of our representatives, however, remains questionable.


 

CONCLUSION

 

It is our view that the system of floor-crossing as currently legislated in South Africa, within the context of an election system Constitutionally premised on proportional representation, runs contrary to the spirit of accountable, participatory and representative governance as articulated by the Constitution.  While floor-crossing does not threaten the legitimacy of the democratic edifice in and of itself, it has introduced unhealthy and avoidable consequences to our developing democratic system and culture.

 

Opinion and electoral data highlight worrying trends that indicate the potential for public antipathy towards floor-crossing to reinforce voter apathy and perceptions of alienation within sections of the voting public.

 

In light of the evidence noted above, it would be prescient for Joint Constitutional Review Committee and other democratic institutions to revisit the floor-crossing legislation, and/or the electoral system, to realise an optimal institutional arrangement that mitigates the systemic contradictions and problems perpetuated by the current structural and legislative regime. 

 

Glenda Fick notes that “Within a closed-list system [as currently legislated in South Africa], floor-crossing undermines the outcome of voting.  It dilutes the electorate’s expression of support for a particular political party, support expressed principally through the vote… this results in an anomalous and awkward arrangement.  A way of addressing the anomaly would be to change the electoral system to one that sits less awkwardly with the constitutional provisions while at the same time retains the benefits to democracy associated with the closed-list [proportional representation] system”.[11]

 

The Electoral Task Team (ETT)[12] appointed by government to review the electoral system prior to the 2004 elections, recommended “a move to closed list [proportional representation] in multi member constituencies in time for the 2009” to “address the question of accountability… and establish a closer link between the voter and his/her representative”[13].  The advantages of the system proposed by the ETT was that it could proceed on the basis of existing demarcations, with a single ballot paper, retaining, in turn, many of the advantages, and simplicities inherent in our current electoral system.  Moreover, the system proposed by the ETT could evolve over time, in line with the South African transition, for example to a second ballot paper, or to a strike out, or ranking system.  The report is yet to be debated in Parliament.  If adopted, the system proposed by the ETT would go some way towards addressing the anomalies thrown up at the intersection of the current floor-crossing regime and the electoral system as it is practised in contemporary South Africa.

 

Extending the electoral system currently legislated in the local sphere to the National and Provincial level, would similarly retain many of the advantages inherent to our current electoral regime, concurrently entrenching greater accountability of representatives to constituents, as well as allowing for accurate fluidity in representation as effected through by-elections.  This would, however, require the scrapping or reform of floor-crossing as it is currently legislated.

 

South Africa has much to be proud of.  The Constitution, now in its tenth year of implementation, is the bedrock of a vibrant and effective democratic system.  However, the evidence cited above raises serious concerns about unintended consequences arising from the First (Act 18 of 2002) and Second (Act 21 of 2002) Constitutional Amendment Acts. The Parliamentary Joint Constitutional Review Process offers a timely opportunity to assess the floor-crossing within this context.

 

 

 

JONATHAN FAULL

May 2006

IDASA

 

 

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[1] http://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_1935387,00.html

[2] ANC Committed to Democratic System. Cape Times, 8 September 2005.

[3] http://www.anc.org.za/ancdocs/anctoday/2003/at13.htm#art1

[4] http://www.suntimes.co.za/2001/10/28/news/news01.asp

[5] If one includes the DP MPs and MPLs who crossed the floor to form the DA, the number of defectors rises to 61 MPs and 55 MPLs.

[6] Fick, Glenda. “Elections and Democracy: Is there free and fair selection of decision makers?” in Calland, R. & Graham, P. (Eds). Democracy in the Time of Mbeki. (2005) Institute of Democracy: Cape Town

[7] In the local sphere, a mixed PR and first past the post system is utilised.

[8] Fick, G. Op Cit.

[9] See the Mail & Guardian article South Africans are Disillusioned with Politics at http://www.idasa.org.za/gbOutputFiles.asp?WriteContent=Y&RID=415

[10] See http://www.businessday.co.za/Articles/TarkArticle.aspx?ID=1681174 for additional opinion on this matter.

[11] Fick, G. Op Cit.

[12] http://www.elections.org.za/papers/27/ETT.pdf

[13] Fick, G. Op Cit.