South Africa’s Constitution not designed to handle hung Parliaments

South Africa’s next general election will, provided no catastrophe intervenes, take place on May 8. That is only days away. Naturally, it is one of the dominant domestic stories in the media, with lots of news and analysis. So, under the circumstances, I am afraid I have no choice – I am going to have to totally ignore it. South Africa’s domestic politics is not within my area of expertise.

But, as everyone knows, this election is taking place under the very dark and sombre shadow of the gigantic institutionalised corruption scandal known as State capture. This episode has raised huge questions that need to be addressed (whether they will be addressed is, alas, another question). What is striking is how State capture subverted nearly every major institution of State and government with almost no violation of the letter of the South African Constitution. Oh, the spirit of the Constitution was totally shredded, yes; but the letter, no. Even if I have overstated the case, the State capture crisis suggests that the Constitution has very grave deficiencies, which have to be rectified. It might even be simpler to draw up a new Constitution, incorporating safeguards that the current one clearly lacks.

I have never forgotten the critical comments, back in 1994, of an Italian professor of comparative constitutions (unfortunately, I cannot remember his name) concerning the then newly passed Constitution. His central criticism was that the Constitution was designed on the assumption that South African politics would always be dominated by a hegemonic political party. At that time, that had been the case since 1948, and that has also been the case since 1994. Over 71 years, South Africa has been ruled by just two political parties.

But from the creation of a unified South Africa in 1910 to 1948, the picture was very different. The South African Party won the 1910 and 1915 elections, came second in 1920 but was able to form a coalition government and then (after merging with the Unionist Party) win the 1921 elections. But the 1924 elections were won by a coalition of the then National Party (not the later party of apartheid) and the Labour Party. The National Party then won the 1929 elections and the 1933 elections. The 1938 elections where won by a coalition between the National and South African Parties. The outbreak of the Second World War saw a split between those in the ruling coalition who supported South Africa declaring war and those who opposed this. The supporters were the majority and created the United Party, which won the 1943 elections. The 1948 elections were then won by the ‘purified’ National Party, which had broken away from the original National Party some years before. This marked the start of apartheid and of the hegemonial era in South African politics.

All these elections were on a first-past-the-post constituency electoral system, under a Parliamentary form of government. All the parties which participated in them are now extinct. Today, South Africa has a party-list proportional representation system with no constituencies and an executive Presidency.

But South Africa is very unusual in that the executive President is not directly elected by the voters. Rather, the President is elected by the House of Assembly, acting as an electoral college. This is fine, as long as one party has a secure majority in the House. But what happens if no party has a majority? This might not happen at the upcoming elections, but it is becoming a credible scenario for the near future. Well, the obvious answer is: various parties in the House of Assembly would form a coalition to elect a President. Fine – as long as the coalition holds. But what happens if that coalition subsequently collapses? Can the President stay in office or, if he or she cannot quickly cobble together a new majority coalition, will he or she fall from power? As the Deputy President would also have been elected by the same coalition, would he or she also lose office at the same time? (If so, what is the point of having a Deputy President?) Would a new President then be elected? And what would happen if that new electoral coalition also, subsequently, broke down? Another new President? A return to the previous President?

Now, such political merry-go-rounds have actually been common in party-list proportional representation systems which do not have hegemonic parties. For example, from 1946 to 1993, the average life span of an Italian administration was less than 11 months! After 1993, and up to 2016, things improved somewhat, the average life span lengthening to just over 21 months. But that is still short, by South African standards. During the French Third Republic (1870–1940) the average government lasted eight months!

But these systems have invariably been Parliamentary systems, where constitutional stability has been maintained because the head of government (the Prime Minister) is quite separate from the head of State (a monarch or a President). Thus, Third Republic France had 103 governments, but only 14 Presidents. From 1946 to 2016, Italy had 65 governments but only 12 Presidents.

But in executive Presidential systems, the two posts are merged. Thus, in South Africa, in the event of the collapse of the current hegemonic dominance of the House of Assembly, the current Constitution could not only plunge the country into a continuing political crisis, but also into a continuing constitutional crisis as well. This alone amounts to a grave deficiency. Directly elected Presidents have their own democratic mandates, independent of those of parties elected to the legislature. Upheavals in the legislature do not deprive them of their own mandates to govern. South Africa’s indirectly elected Presidents, alas, do not have this anchor.