"CROSSING THE FLOOR" PACKAGE OF AMENDING LEGISLATION

Steve Swart, MP - ACDP

Tuesday, 11 June 2002

African Christian Democratic Party MP Mr. Steve Swart gave the following speech in Parliament today during the debate on the controversial “Crossing the Floor” legislation:

Madame Speaker, the ACDP has debated and anguished over this legislation and has consulted widely. We also appreciate that the proposed legislation has been tightened significantly, as compared to earlier drafts. The anti-defection clause has been retained in the Constitution, subject to a limited number of window – periods and, save for the first period, a minimum ten percent threshold, between the elections.

We are, however, opposing this legislation because we believe that it has been hastily conceived, that it is premature in view of the Slabbert Commission, that it will result in political instability, particularly in the Local Government Sphere, and that it violates the proportional representation system prescribed by the Constitution.

We are firstly concerned at the indecent haste with which this package of complex legislation has been considered, and that for reasons of political expediency these far-reaching legislative proposals and constitutional amendments were only finalised last week. Only yesterday we were still grappling with the vast financial implications of the legislation for parties and representatives, the implications being as clear as mud at the moment.

We also share the view that the draft legislation is premature in view of the proposed comprehensive overall of the Electoral Act by the Slabbert task team. This task team has stated that it will consider the “anti-defection clause”[1]during its deliberations. This point was also compellingly argued by IDASA who submitted that[2]:

“… it would not be sensible to consider the two elements of the political system – the electoral system on the one hand, and the rules pertaining to “crossing the floor”, on the other – in isolation… The Slabbert Commission provides an ideal opportunity to consider the matter in a systematic, holistic and conceptually coherent manner. To finalise the provisions of the (membership) bill before the Slabbert Commission has offered its recommendations, would in our opinion pre-empt the matter, in effect “putting the cart before the horse”.

We also have very real concerns regarding political instability at local government level. These concerns were echoed by the Electoral Commission who explained that the instability created by crossing the floor and by parties merging and subdividing will be “much worse (at Local Government Level) than nationally or provincially.” The IEC added that “there are a substantial number of smaller parties represented in municipal councils, as well as a relatively large number of hung councils where no one party holds an absolute majority. This instability will undoubtedly filter through to district councils from local councils.[3]”

SALGA also confirmed this view that floor-crossing “even three times in five years will cause instability” at local government level.

Our concerns are further confirmed in the Report to Parliament on the Municipal Structures Bill where it is stated that, “it is difficult at this stage to fully anticipate all the consequences that “the crossing –the–floor” will have for district councils, metropolitan subcouncils, and other municipal structures and committees.”

In 1995 prior to my election to Parliament, I practiced as an attorney, and in that capacity represented this august House, sitting then as the Constitutional Assembly, at the Constitutional Court during the proceedings to certify the National Constitution.
It is significant that the Constitutional Court [4] in its judgement identified three important functions of the anti-defection clause:

1. It promotes accountability of members to the electorate: “It obliges members of a party, who are elected by virtue of the inclusion of their names on the parties list, to remain loyal to that party. That meets the expectation of voters who gave their support to the party;

2. It “can act as an additional check on legislators who are accountable not only to the electorate and the Legislature, but also to their parties”.

3. It is supportive of multi-party democracy: “it also prevents parties in power from enticing members of small parties to defect from the party upon whose list they were elected to join the governing party. If this were permitted it could enable the governing party to obtain a special majority which it might not otherwise be able to muster and which is not a reflection of the views of the electorate.”

The Court accepted the main reasons for the inclusion of the clause - to secure a more stable government and to avoid corruption in legislatures.

The traditional arguments against allowing crossing the floor relate to corruption and political instability. After endemic defections in the Indian Legislatures, resulting in political instability, a qualified anti-defection clause was added. The Supreme Court of India upheld the constitutionality of these provisions as their object was to strengthen Indian parliamentary democracy by curbing unethical defections:

”The underlying premise in declaring an individual act of defection as forbidden is that the lure of office or money could be presumed to have prevailed.[5]”

In South Africa, the members of the National assembly and of provincial legislatures were elected in 1999 in accordance with a proportional representation system prescribed in the Constitution. Citizens voted primarily for the party of their choice and its leader, not so much for the candidates on the party list ”whom the vast majority of voters did not know[6]” It is a cardinal principle of the proportional representation system that elected members vacate their seats when they resign from their party or lose their party membership. This system, in the words of the Electoral Commission, “ensures that the will of the people, as expressed in an election, cannot be negated and substituted by the will of an individual, or a group of individuals”.

We accept, however, that there is a mixed PR and Ward system in the Local Government Sphere, and that a stronger argument can be made permitting a ward- or independent councillor to cross the floor.

However, having considered the proposed amendments, the ACDP agrees with the IEC’s view that “the end result of the proposed changes will be a contradictory mixture of systems, straddling both the PR and first past the post principles, whereby the voter votes for the party, but thereafter the members are allowed to act as if they had been individually elected from the constituencies”[7]. The implication of this is that the proportionality as expressed by voters on Election Day will change. The principle of proportionality remains thus, in general, - but in-between elections this principle is trumped by the “crossing -the-floor” legislation.

Whilst we appreciate that the first window period is to deal with the problem facing the DA on a local government level, it is undeniable that the majority party will benefit the most from this legislation. The 1ten percent threshold, albeit not applicable in the first window period, will make it nigh impossible for any one national ANC MP to defect unless he is joined by 27 others. It is significant that the Chairman of the Local Government Portfolio Committee, Mr Carrim, in a most forthright and honest manner, admitted that the legislation pertaining to the local government amendments “does substantially benefit the majority party”.

We are not opposing this legislation because we are concerned about losing members. On the contrary, we stand to gain as a growing party. As our member, Kent Durr, recently stated in the NCOP, we believe the amending legislation is “wrong minded and that it is at best premature. The whole question on what basis members should be elected is currently under review perhaps to get closer to the German electoral system on which our constitution is largely based. We believe that what is proposed is tantamount to a gerrymandering of the constitution to serve the short term desires of a particular political party.

We believe that if and when the Parliaments of our country are fully or partly constituted on a constituency basis, with directly elected members, whose names appear on the ballot paper, a new situation would arise: We are not there yet.

Inasmuch as our system is currently a list system of proportional representation, we believe what is proposed in this Bill runs the risk of skewing the principle of proportionality, as set out in the constitution. “

Insofar as the political situation in the Western Cape is concerned, we repeat our call that Local Government elections should be held.

The ACDP can consequently not support these amendments.

I thank you.


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For further comment please call Steve Swart MP at 083 285 6290 or ACDP Media Liaison Liza Bloemetje at 082 478 1037




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[1] See Annexure containing Sapa press release
[2] Idasa submission forwarded to Parliament on 16 May 2002
[3] Submission by the Chairman, B H Bam, to the Minister of Justice and Constitutional Development dated 12 April 2002, circulated to members of Parliament on Tuesday 14 May 2002.
[4] Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 4 SA 744 (CC) as quoted by Steytler.
[5] Kihota v Zachilhu 1993 SC 412
[6] IEC submission p 2
[7] IEC submission p 3