Chief justice Raymond Zondo's recommendation that voting laws should be changed to allow South Africans to directly elect their president has reignited a 20-year-old debate over electoral reforms.
On Wednesday Zondo's final report into state capture recommended that South Africans should be able to directly elect a president.
He said the proposal was aimed at ensuring anyone who becomes president of the country does so on the basis of their own popularity with people, not on the basis that, if voters vote for a particular party, that party will make him or her president.
“Of course, if this recommendation is accepted and necessary constitutional and legislative changes are made [so] it is implemented, that will not necessarily give the people of this country any guarantee that somebody similar to of Mr Jacob Zuma or even worse than Mr Jacob Zuma will ever be elected as president of the country. The possibility will always be there,” Zondo wrote.
Zondo said evidence presented before him showed how over a period of four years, Zuma helped facilitate the Guptas to loot billions.
While many civic organisations such as New Nation Movement (NNM) and the Council for the Advancement of the SA constitution (Casac) have been calling for electoral reform over the years — both agreed it was a premature move.
The NNM said the country's democracy was still new, the recommendation did not guard against candidates being bought and it decreased accountability while entrenching political party power.
In June 2020, the Constitutional Court instructed parliament to amend the Electoral Act and allow those not belonging to parties to be elected to the National Assembly and provincial legislatures.
It gave the legislature 24 months to do so, with the deadline of June 11 2022.
Since then, parliament applied for a six- month extension which was granted, moving the deadline to December 2022.
The bill before parliament will be sent to the president for assent by the end of September so as to make any amendment should there be concerns.
NNM's Bulelani Mkhohliswa said the proposed bill entrenched the power of political parties even further.
“In terms of the number of excess votes for independent candidates, there's nothing in the bill that speaks to allowing those votes to be harvested into one place, while excess votes of political parties will count in their favour and find their way to PR seats,” Mkhohliswa said.
There is a clause in the bill that proposes surplus votes gained by independent candidates in elections be discarded. Another proposal which NNM was against was dividing up those surplus votes to other independent candidates who failed to meet the threshold.
Mkhohliswa said Zondo's recommendation was premature: “What Zondo is saying is premature. Democracy must evolve when [we] get to a stage of choosing presidents directly, democracy must have evolved so that state institutions are strong enough to withstand whatever onslaught is thrown its way. We’re in a worse state.”
Casac executive secretary Lawson Naidoo said the proposal before parliament maintained the current system and just allowed independent candidates to contest, adding it did not address the need for meaningful reform.
Naidoo said he did not agree with Zondo's proposal as this could bring a range of unforeseen risks as accountability of the president would be much more difficult to maintain.
“The current system is parliament has the responsibility to hold the president accountable. The fact that parliament has failed in the past is something we need to ensure doesn't happen and they exercise duty clearly.
“The recommendation is not consistent with judgment of NNM's case. We’ve been urging the committee of home affairs to reconsider the bill. We want the constituency model that’s been ignored by parliament and hopefully it gets redrafted,” he said.
University of Pretoria legal expert Dr Llewelyn Curlewis said Ramaphosa needs three months to study the report meaning parliament would only see the recommendation around October.
“In short, for the recommendation to be implemented it means that new legislation must come into effect and an amendment to the constitution must be made and it won’t take a day but could take at least 24 months.
“Once proposed, it must be taken to provinces for public input and debate and only then can it go to parliament for deliberation. Once deliberated, it needs a two-thirds majority vote.
“The process hasn’t started yet, it's only a recommendation.
Meanwhile, One SA Movement's Mmusi Maimane welcomed Zondo's recommendation.
“If you want to end state capture you have to force parliament to account to the people. You have make sure that a constituency-based model is on the table.
He said this means that a MP or president can be voted by the people. Maimane said on a practical level voters who are unhappy about the president can call for a petition and vote him out directly. He said the rules on how this is to do be done must be formulated by parliament.
“It would mean that in parliament itself when you vote against your party you don’t lose your seat because your seat is based on a constituency,” he said.
“What this would mean for the ordinary person is that they will not be beholden to the party. If this does not happen, state capture will happen again,” Maimane said.
The IFP's Mkhululeko Hlengwa said the report was confirmation the system has to change.
He said this would increase accountability on MPs and make sure that there’s less abuse of power.
ACDP's Wayne Thring said democracy was about placing more power into the hands of the people by helping them to hold those in power directly accountable.
“The current system has a lot of problems with factional battles within the ruling party. By having a direct election it cuts through the factions so people can elect their own president despite what goes on in the party,” Thring said.
DA spokesperson Adrian Roos also welcomed Zondo's recommendations.
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