This, in principle, means that everyone from the President to the postman – the government, its officials and its institutions – must be able to explain and justify their decisions, actions and laws to the people; they must respond to and be accessible to the people; and they must conduct their business of governance in an open and transparent manner. Such a “culture of justification” – is a culture, according to Mureinik, in which “leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command“. It is a culture in which a government justifies its use of power to Parliament as representatives of the people and, where it fails to do so, in which the electorate has a duty to hold its representatives accountable.

In giving effect to a multi-party system of democratic government, the Constitution hence provides for a national Parliament (comprising the National Assembly and National Council of Provinces), provincial legislatures and local government to represent the people in the respective spheres of government – thus, a democracy, according to the Preamble to the Constitution, in which “government is based on the will of the people“. Accordingly, the Constitution in section 42(3) determines that the National Assembly “is elected to represent the people and to ensure government by the people under the Constitution“. In order to ensure government by the people, section 42(3) also mandates the National Assembly to, on behalf of the people, choose the President, to provide a national forum for public consideration of issues, to pass legislation and to scrutinise and oversee executive action. The National Assembly must therefore – in a manner that is both reasonable and rational – provide a platform for public audience and debate and must hold, on behalf of the electorate, the National Executive accountable for its decision, actions and inactions.

Section 47 of the Constitution, however, determines – apart from prescribing eligibility for membership of the National Assembly – that a person loses membership of the National Assembly if that person, among others, “ceases to be a member of the party that nominated that person as a member of the Assembly.” Section 47(3)(c) in its current outline originated from Item 13 of Annexure A of the now repealed Schedule 6, and is the result of two previous constitutional amendments. The first amendment amended the original so-called “anti-defection“-provision in order to allow for changing of political party allegiance without losing membership of the National Assembly (in terms of now repealed Schedule 6A of the Constitution). The second amendment again abolished the right of members of the National Assembly and provincial legislatures to change political party membership whilst retaining membership of the National Assembly or provincial legislature. This section consequently prevented defections from one party to another by making retention of party membership a prerequisite to retention of membership of the National Assembly.

Although section 47(3)(c) and corresponding preceding provisions may indeed have been politically justifiable in ensuring political certainty and parliamentary stability during the first few years of democracy in South Africa, this section has served its intended purpose and has, moreover, resulted in an unintended, yet detrimental consequence: Apart from preventing floor-crossing by making retention of membership of Parliament subject to retention of political party membership, it also makes retention of party membership a prerequisite for security of tenure and a continuing parliamentary career.

The Constitutional Court in certifying the Constitution, endorsed the retention of the original anti-defection provision, but did not deem it a constitutional prerequisite. The Court did, however remark that although the anti-defection provision was to be retained, it was done so with the understanding that under such a system “an individual member remains free to follow the dictates of personal conscience“. In hindsight, the Court may have been over-optimistic in its vote of confidence in party leaders. In the UDM-case, the Constitutional Court again reflected on the anti-defection clause and held that a proportional representation system without an anti-defection clause was not inconsistent with democracy since an anti-defection clause “though possibly desirable, is not an essential component of multi-party democracy, and cannot be implied as a necessary adjunct to a proportional representation system“.

In its current form, section 47(3)(c), unlike envisaged by the Constitutional Court in the Certification-judgement, effectively limits the freedom of individual members to follow the dictates of personal conscience and moral conviction. It has resulted in a party mandate above personal conviction, a serious erosion of freedom of expression and negation of the practice of a free mandate of representation. As such, it effectively prevents the National Assembly from being the nation’s “Committee of Grievances” and “Congress of Opinions” as Members fear being disciplined, sanctioned and dismissed by their party leadership – effectively ending their parliamentary careers – should they speak out or refuse to support the party position on any particular matter. It has also resulted in Members of the National Assembly seeing themselves as party members accountable to their parties first, rather than to the voters who have (at least theoretically) elected them. This has left the National Assembly severely restricted in fulfilling its constitutional mandate.

Devenish rightfully contended that our constitutional democracy should be “defended against the predations of all those in the new body politic and society who prove to be power-hungry, unscrupulous, uncaring and avaricious“. Unless representatives continuously reflect the views of all concerned constituencies, Parliament and the National Executive will become institutions of privilege and inequality in favour of certain individuals and party bosses – thus, in essence, resulting in a minority of the majority governing as they see fit. Lo and behold, the National Assembly is barely providing a national forum for public deliberation of matters important to the voters and is rarely effectively holding the National Executive accountable for its actions and inactions. Moreover, presiding officers and committee chairpersons appears to any reasonable person to be dictating the agenda based on priorities apparently set by and in favour of party leadership. The significance of the latter is that neither Members of the National Assembly nor the National Executive are any longer accountable or responding to the voters. The leadership of the governing party (and in some instances also the National Executive) effectively determines priorities on behalf of the National Assembly, leading, for all intents and purposes, to government of political ambitions and ultimately, what Mungo calls a “partycracy“, instead of a multi-party democracy.

However, in addressing the shortcomings of section 47(3)(c), it is also necessary to reflect on the current electoral system of closed party lists and proportional representation in so far as the electoral system itself is limiting government by the people. The current electoral system of closed party lists has effectively alienated voters from their representatives since representatives in the National Assembly are in reality neither accountable to any specific constituency nor representing the views of any particular constituency. Even though Members of the National Assembly may be referring to their “constituencies” and constituency engagement, the fact of the matter is that representatives are not elected by any constituency and cannot individually be recalled or voted out by a particular constituency, should they fail to represent the views of their “constituencies“. This electoral system also gave rise to a further anomaly – arguably inconsistent with a constitutional democracy. Neither the Constitution nor relevant legislation requires political parties to adhere to internal democratic processes – especially in relation to the compilation of party lists. Thus, despite our constitutional democracy being founded on the principle of government by the people, the people actually have no guaranteed say in who represents them in Parliament.

Section 47(3)(c), together with the current closed party lists electoral system, creates an environment in which Members of Parliament are beholden to their party bosses rather than to the electorate. This results in the will and concerns of voters not necessarily at all times being reflected, or even considered, in the National Assembly. Moreover, this creates an environment in which more focus is placed on longevity of political careers than on accountable, responsive and open government. It consequently also infringes upon the principle of separation of powers, as it results in the National Executive not effectively being held accountable, potentially leading to, according to Mill, an “endless variety of unjust privileges, sometimes benefiting their pockets at the expense of the people“. This ultimately not only weakens Parliament as a keystone of our constitutional democracy, but also democracy itself.

The importance of maintaining the electorate’s confidence in a multi-party democracy speaks for itself. Once the people have lost confidence in a political system which has created distance and even detachment between the voters and representatives, it will be very difficult to restore that confidence so as to avoid cynicism, apathy or conceivably even outright revolt by alienated voters. It is therefore crucial for individual representatives to be allowed to maintain close association with voters and to be seen to be truly representing the diverse and multiple views and interests of various constituencies. Hence, unless Members of the National Assembly are able to act in terms of a free mandate (and are elected by means of an electoral system which allows the electorate the ability to hold individual representatives accountable), the notion that “government must be based on the will of the people” will surely disappear together with the values of accountability, openness and responsiveness.

Based on a paper entitled “Section 47(3)(c) of the Constitution, Parliament and the values of Accountability, Openness and Responsiveness” presented at the New York Law School Conference on “Twenty Years of South African Constitutionalism: Constitutional Rights, Judicial Independence and the Transition to Democracy“, 13 – 16 November 2014, New York, United States of America.

By Adv Johan Kruger, Director: Centre for Constitutional Rights

For comment:
Adv Johan Kruger: Director, Centre for Constitutional Rights
 Phone: 27 (0) 21 930 3622

Megan Dick: Communications Officer, FW de Klerk Foundation
 Phone: 27 (0) 21 930 3622

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