Pierre de Vos, Constitutionally Speaking – 4 April 2019
In just more than a month, a sizeable number of South Africans will go to the polls to cast their votes for political parties contesting elections for the National Assembly (NA) and for one of the nine provincial legislatures. When a voter casts her vote for a political party, she is forced to “vote” for all the candidates on the party’s electoral list – even if she believes some of the candidates on a party list are corrupt, dishonest, or profoundly unlikeable. Voters may punish a political party for nominating such scoundrels by voting for a different political party. But are there other ways to influence political parties to ensure they select more honest and hard-working public representatives?
Because political parties (and not voters) select the candidates who will represent their respective political parties in the NA and in one of the provincial legislatures
Are you: A habitual drunk? A liar and a cheat? A spouse beater? A bully or a hate monger? Catastrophically lazy? Implicated in corruption or nepotism? An apartheid apologist? A racist or sexist?
No worries, there is no legal impediment to your party nominating you to represent it in the NA or in one of the provincial legislatures. Cynics might even argue that your chances of being selected onto a political party’s electoral list may even improve if you are one or more of the above.
There are really only four substantive legal reasons disqualifying a candidate from becoming a member of the NA or of one of the provincial legislatures.
By far the most important qualification for becoming a member of the NA or of a provincial legislature, is that you need to be a member of a political party. It helps if you are a loyal member who never criticises the party or the leaders in the dominant faction of your party. The current electoral system and political culture thus reward the loyalty of elected representatives to their political parties and its leaders above all else.
Depressingly this means that when a member of the NA or one of the provincial legislatures is forced to choose between, on the one hand, having to turn a blind eye to corruption, dishonesty, or racism or sexism in their own party, and, on the other hand, serving the interests of voters, almost every single legislature will rather defend their own party and its leaders than act in the interest of those who voted for their party.
Apart from having to be a loyal member of a political party, there are 3 further legal requirements candidates must meet to be eligible for election. Being an unrehabilitated insolvents, having been declared to be of unsound mind by a South African court, or having been convicted of a criminal offence and sentenced to more than 12 months imprisonment without the option of a fine, disqualified a person from being nominated as a candidate by their party.
This means a man found guilty of assaulting his wife or girlfriend and sentenced to three years imprisonment, which sentence was suspended, would not be prevented from being nominated on to an electoral list by their party. It is then up to voters to decide whether their conscience allow them to vote for a party who fields a candidate who assaulted his wife.
When we vote in an election, we make a political choice, based on an assessment – according to our ideological and other commitments – of all the evidence available to us. One of the factors we consider when we choose who to vote for, is whether we feel comfortable that the candidates on the political party’s electoral list are honest, diligent, non-corrupt and more or less share our ideological views. When we make these assessments about the character of party candidates, we are not finding anyone guilty of a criminal offence. Neither are we sentencing anyone to serve a prison sentence.
It is for this reason that ordinary voters are not required to wait until the state proves beyond reasonable doubt that a person is guilty of a crime, before we are allowed to form a negative opinion about candidates included on a political party’s electoral list and about the political party who chose to field these candidates despite serious questions about their honesty and integrity.
To use an example of South Africa’s apartheid past: HF Verwoerd was never found guilty of any crime, but apart from the odd Afriforum crazy, no South African is going to argue that Verwoerd was never convicted of a crime, so we cannot pass any judgment on him or his actions. Of course, we can. No, in fact, we have a moral duty to pass harsh judgment on Verwoerd and not to support any political party or organisation who valorises the man.
Political parties are no different. Those party leaders and members involved in the selection of candidates for electoral lists make value judgments about potential candidates, deciding that some are suitable to appear on an electoral list, while others are not suitable and must be rejected. This rejection does not mean those involved in making the selection have found the rejected candidates guilty of any criminal offence. All it means, is that the participants have decided the potential candidate is not suitable to represent the party in the legislature.
In defending the inclusion of various tainted individuals on the ANC electoral list, ANC Secretary General, Ace Magashule (himself implicate din corruption) seemed to suggest that when the ANC compiles electoral lists, it completely ignores all information about a potential candidate that may disqualify that candidate from being an appropriately honest and diligent public representative. All that matters is that the selection process resulted in the candidate being selected, regardless of moral considerations. Magashule thus stated:
“We have looked at what the law says. You are talking about people who have not been charged with any offence. Why do you want to single out people?… The mere mention of wrongdoing and corruption by an individual does not make that person guilty unless due process is followed.”
Of course, this statement ignores the fact that various courts have already found that both Malusi Gigaba and Bathabile Dlamini (both on the ANC national list) had lied to the court. While not criminal convictions, these findings were made by a court of law (in one case by the highest court of the land).
But if we ignore this and take the statement at face value, it suggests that once the list process is completed, the only thing the party would consider when deciding whether a candidate should be excluded from an electoral list, is whether that person was convicted of a crime. This is not a legal requirement as no political party is constitutionally bound to include candidates on their electoral list against whom credible accusations of corruption had been levelled.
This is because political parties are not courts of law and when they make decisions on who to place on their electoral lists, they make a political and not a legal decision. They are therefore not bound to follow the procedures followed during a criminal trial.
Put differently, political parties making political decisions about the selection of party electoral candidates have no duty to make such decisions following the requirements of a fair trial (including the requirement to presume innocence until proven guilty). To conflate the process followed by criminal courts with the political process followed by political parties when they compile electoral lists is like conflating the music and (lack of) character of Steve Hofmeyr with the music and character of Simphiwe Dana.
Because decisions political parties make on who should appear on their electoral list and how high up on the list a particular name should be placed, are profoundly political decisions, these decisions are probably the best possible information available to voters about the character, ideological orientation and ethics of a political party.
When the DA places Diane Kohler-Barnard high up on its election list, despite being accused for a second time of racism, voters would be justified to draw negative conclusions form this. When the EFF places Floyd Shivambu and Marshall Dlamini high up on its electoral list despite them both being caught on camera at different times assaulting somebody, voters are again justified to draw negative conclusions from this.
Similarly, the fact that there are a worryingly large number of candidates on the ANC electoral list with serious corruption allegations hanging over them would warrant voters to judge the ANC harshly for making the political choice to include them, thus sending a signal that the party does not take the concerns of voters about corruption seriously.
Because voters have no say on who are selected to appear on party electoral lists and as we will be forced to vote for some or other political party – despite being horrified about some of the names appearing on the electoral list of our preferred party – voters may feel powerless. We have the power to campaign against political parties and their electoral lists when those lists contain the names of scoundrels or of politicians who have been tainted by scandal.
It is true that some political party leaders and members claim that the selection of candidates for electoral lists is an internal party matter that has nothing to do with the rest of us. Because the correct process was followed, so the argument goes, it is not permitted for anyone to criticise the outcome – even if the list contains names of many dubious characters.
But they are wrong.
As we are stuck with the results of list processes, the compilation of party lists and who appear on them affect us all. For voters it matters not whether the internal party process was followed to compile the list. What matters is whether voters can support the list or not. No voter is going to support a list merely because the Secretary General of a party says the internal party process was followed to compile it. It is for this reason that I am busy studying the electoral lists of all the main parties so that I am prepared to challenge the inclusion of tainted individuals on the electoral list of any political party whose canvasser comes asking or my vote.