10 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case

10 in the constitutional court of south africa case no: cct 23/2002 in the matter between: united democratic movement applicant

10
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No: CCT 23/2002
In the matter between:
UNITED DEMOCRATIC MOVEMENT Applicant
and
THE PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA First Respondent
THE MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Second Respondent
THE MINISTER FOR PROVINCIAL AND LOCAL
GOVERNMENT Third Respondent
Together with:
AFRICAN CHRISTIAN DEMOCRATIC PARTY 1st Intervening party
AFRICAN NATIONAL CONGRESS 2nd Intervening party
INKATHA FREEDOM PARTY 3rd Intervening party
PAN AFRICANIST CONGRESS OF AZANIA 4th Intervening party
PREMIER OF THE PROVINCE OF KWAZULU-NATAL 5th Intervening party
SOUTH AFRICAN LOCAL GOVERNMENT
ASSOCIATION 6th Intervening party
INSTITUTE FOR DEMOCRACY IN
SOUTH AFRICA 1st Amicus curiae
RESEARCH UNIT FOR LEGAL AND
CONSTITUTIONAL INTERPRETATION 2nd Amicus curiae
AFFIDAVIT
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I, the undersigned, THOMAS LODGE, make the following statement under
oath:
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1.
I have been a Professor of Political Studies at the University of
the Witwatersrand since 1997, and have taught Politics and African
Politics at Wits since 1978. I hold a BA Honours from the
University of York as well as a B Phil and a Doctorate from the
same institution. I have published five books and numerous
articles and contributions to books on South African and African
politics.
2.
I have read Professor Robert Schrire’s affidavit on the effects of
floor crossing within proportional representation systems.
Representatives of the Applicant in this case have asked me to
comment on the reasoning and conclusions in that affidavit.
3.
Given the time constraints, I have not had the opportunity
thoroughly to assess the validity all of Professor’s Schrire’s
submission. There are, however, certain items with which I take
issue, and which warrant comment.
4.
I note, that Professor Schrire observes that “mature and stable
democracies tend to be more tolerant of floor crossing” because
there is no need to restrict it for the sake of political
stability. I would agree, but note that South Africa is not by
most measures a “mature” democracy. The most rigorous measure is
the “two turnover” test (Samuel Huntington, The Third Wave,
Norman, University of Oklahoma, 1991, pp. 266-267) in which a
party that wins the first democratic election concedes defeat and
hands over power to its opponent in a subsequent poll. (A copy of
relevant pages from The Third Wave is annexed hereto marked TL1).
More permissive definitions include public consensus over
democratic values and democratic institutions – such consensus
normally takes longer to develop than the eight years of
democratic government experienced by South Africa.
5.
Moreover, floor crossing in circumstances in which there could be
changes in the balance of power risks the stability of the
political system.. For example defections in KwaZulu-Natal from
Inkatha to the ANC would likely result in the ANC becoming the
predominant party in the province and hence the defections would
have as their consequence a change in government. This would
certainly be viewed as an injustice by Inkatha supporters, and may
well lead to political instability.
6.
In paragraph 14 of his affidavit, Professor Schrire notes that the
rationale for prohibitions on floor crossing of the kind we have
in South Africa is often to prevent corrupt vote buying. A more
compelling consideration in South Africa during the negotiations
between 1992 and 1994 and 1995-96 was to create and maintain a
political system of as inclusive a character as possible that
fully accorded with the wishes of the electorate. Proportional
representation, [buttressed by a prohibition on floor crossing],
was chosen not merely so that electoral outcomes would be
acceptable in the short term but also so that the parliamentary
system would enjoy legitimacy through the inclusion of the
broadest inclusion of minorities.
7.
In paragraph 20 of his affidavit, Professor Schrire argues that
the purpose of a proportional representation system is to reflect
the preferences of voters, not parties. This is true. However, I
note that only registered political parties may contest South
African elections. Candidate lists are published before polling
day, but when voters cast their ballots they do not indicate
preference for any group of candidates. Voters mark their ballot
in favour of parties and party symbols. In South Africa, during
elections, emotional or moral identification with particular
parties is high among voters and the number of fluid or “swing”
voters is low. These characteristics significantly distinguish our
political system as different from those of mature democracies, in
which party identification among voters is characteristically
weak. In South Africa, voters consciously choose between parties,
not between sets of candidates (Mattes, Taylor and Africa, in
Andrew Reynolds, Election ’99 South Africa, Cape Town, David
Philip, 1999, pp. 56-59). (A copy of relevant pages from this work
is annexed hereto marked TL2).
8.
Professor Schrire suggests in paragraph 21 of his affidavit that
legislators cross the floor in response to shifts in the opinions
and preferences of their constituents, and the loss of public
support of the party on whose list they were elected. Hence, he
says, in crossing the floor, legislators give expression to the
preferences of their constituents. I disagree. Legislators defect
from their parties for a variety of reasons. These reasons may
include disagreement with new policies adopted by their leaders.
Legislators may defect because they desire senior public office,
and believe they are more likely to acquire it by joining another
party. They may defect because of a split in the party. They may,
indeed, decide that their own constituents would prefer them to
belong to another party – though that is most likely to occur when
representatives enjoy a clearly defined support base with which
they are in regular contact, as might be the case in a
Westminster-style single member constituency form of
representation. Only in the last case would Professor Schrire’s
assertion be valid. In the former three instances, defection would
result in a composition of the parliament that would not reflect
the wishes of the electorate.
9.
It needs to be noted that in South Africa we have no official
institutions through which parliamentarians can identify their own
“constituents.” Attempts by parties to maintain geographically
defined constituency offices are voluntary and poorly funded.
Smaller parties especially find it difficult to locate and define
geographical constituencies with which members can have regular
contact.
10.
In the early experience of African democracies, during the late
1950’s and 1960s, floor-crossing was quite common. By far the most
frequent direction of parliamentary defection was from opposition
benches to the government. As Ali Mazrui has noted (Violence and
Thought, Essays in Social tensions in Africa, London, Heinemann,
1969, p. 122) large-scale floor crossings rendered a number of
democracies de facto one-party states, well before their
democratic Constitutions fell by the wayside. (A copy of relevant
pages from this work is annexed here marked TL3). For example, in
Ghana, between 1957, the year of independence and 1960, the
parliamentary opposition shrank from 32 to 20 as a consequence of
floor crossing. In Zambia the adoption in 1972 of a one party
constitution followed several years in which opposition party
members were induced to cross the floor: six ANC members joined
UNIP in 1970. However, the judiciary decided that by-elections
would have to be held in the constituencies affected (a
requirement in some versions of the Westminster system). In these
polls the electorate remained loyal to the opposition, rejecting
their former MPs who had changed sides. In Kenya, the main
opposition party, KADU, without any consultation of the
electorate, merged with KANU one year after independence after its
leaders were offered cabinet positions.
11.
In those countries, it is unlikely that the change in party
loyalties was motivated by the expressed preferences of MP’s
supporters – in the case of Zambia by- elections after floor
crossings showed that voters viewed the defections with disfavour.
In many cases, floor crossing was the consequence of
parliamentarians realizing that their prospects of obtaining
public office would be remote, unless they joined the ruling
party. Floor crossing that works predominantly in favour of the
government would tend to weaken rather than strengthen party
accountability. The most important kinds of accountability are the
restraints that are exercised by parliamentarians on members of
the government. If the result of floor crossing was substantial
weakening of opposition parties then the overall effect would be a
consolidation of executive autonomy.
12.
It seems very likely that, at least in the short term, the major
beneficiary of floor crossing in South Africa will be the
governing party, and its allies. If one were to accept Schrire’s
argument then we would expect to find significant shifts in public
sentiment in favour of the ruling party. But the most recent
public opinion poll evidence suggests, on the contrary, that all
parties have lost support. See for example polling undertaken by
the Helen Suzman Foundation in early 2002 and cited in an article
in the Mail and Guardian, 19 July 2002 (annexed hereto marked TL 4),
and in the Sunday Independent, 21 July 2002 (annexed hereto marked
TL5). This is a fairly typical trend in the context of a mid-term
parliament. It does not suggest, though, that parliamentarians
have any grounds to believe that there have been significant
shifts of preference among “their” constituents, however they may
define these.
13.
In paragraph 23, Professor Schrire argues that floor crossing is
unlikely to particularly undermine small parties because they are
less prone to factionalism than large organizations. But as I have
noted, the historic record shows that floor-crossing during the
history of multi-party government in Africa has heavily favoured
the largest ruling parties. In any case, it is very doubtful that
vulnerability to factionalism is merely a function of greater size
– small parties tend towards ideological rigidity and hence are
more brittle and prone to internal ideological disagreement.
14.
The South African representational system was intentionally
designed to allow for the entry into parliament of very small
groups indeed – hence the absence of a formal threshold and the
adoption of the Droop Quota for seat allocation. The effect of
this is that in addition to large parties, parliament includes an
impressive spectrum of political affiliations. This system helps
to draw into the fold of institutionalized politics groups which
otherwise might adopt extremist or “anti-system” positions. The
representation of such groups serves a useful purpose in the
aftermath of profound civil conflict. Floor crossing by members of
such groups would substantially reduce the inclusive function of
the South African system.
15.
Finally, Professor Schrire suggests that even if small parties
were undermined that this would be no bad thing because it would
work against the tendency of proportional representation to
generate a fragmented party system. He points to the example of
Italy in which unstable shifting coalitions have predominated over
the last fifty years. But I believe that such an outcome is
unlikely in the South African setting, which is often described as
a “one-party dominant” system, in which one political organization
enjoys at national level overwhelming public support, and does not
depend on coalition partners to remain in power (see, for example,
Herman Giliomee and Charles Simkins (eds.), The Awkward Embrace:
One-Party Domination and Democracy, Cape Town, Tafelberg, 1999).
(A copy of relevant pages from this work is annexed hereto marked
TL6).
16.
Professor Schrire’s conclusions seem to be that the institution of
floor crossing would result in a parliamentary system that would
facilitate greater accountability, in closer accord with
constituent preferences, and which would favour political
stability. For the reasons set forth above, I disagree.
_____________________________
TOM LODGE
I certify that the deponent acknowledged to me that she knows and
understands the contents of this declaration, that she has no
objection to taking the prescribed oath and considers it to be binding
on her conscience.
Thus signed and sworn to before me at Johannesburg on this 25th day of
JULY 2002.
________________________
COMMISSIONER OF OATHS