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Thread: Is our constitution fundamentally flawed?

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    Site Caretaker Dave A's Avatar
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    Is our constitution fundamentally flawed?

    Our constitution is claimed to be one of, if not the best in the world. In fact it probably was until the reintroduction of racial discrimination into the constitution.

    Yeah, yeah - I know it's supposed to be fair racial discrimination, but trying to resolve inequalities in economic and academic circumstance by setting rules by race is like deciding which cows need better grazing by measuring the distance between the tips of the horns.

    But that's not what I'm trying to tackle right now. What is floating through my mind is something slightly more complex, and perhaps far more dangerous.

    It is the undesirable consequence of two components of our constitution. Viewed in isolation they seem fine, but in combination we might just have a problem.

    First, we have the system of proportional representation.
    The big plus for proportional representation is that it allows pretty small minority interests a shot at getting representation that they might not get otherwise. However, proportional representation also seems to have created two problems in particular:
    • Individuals aren't directly responsible to the people who have elected them, making it quite difficult for the electorate to pin individual politicians down when they don't do things the way the electorate would prefer.
    • Politicians owe their seat in parliament (or the other elected bodies) to the party, not the electorate. This makes them servants of the party, not the people.

    One of the consequences which I'd like to stress for now is this means when it comes to voting in parliament, we are seeing block voting by party. If for some reason a member of parliament wishes to vote differently to what the party would prefer and the party feels the need, said errant individual can look forward to having to do real work for a living in the not-to-distant future rather than the spectacularly comfy role of being the cheering section of the main stars who are doing the real work.

    Now you might think given this party power every decision is discussed right through the party before any decision is made. But in reality, no matter how "democratic" the party claims to be, most of the time very few people are making the big decisions.

    The top leaders will make a decision and everyone else is expected to cheer them on. A classic example is the recent decision to deny the Dalai Lama entry into the country, a decision made by two people on behalf of the nation according to reports on the matter.

    Second, we have the matter of simple and two thirds majority votes.
    Most matters only require a simple majority. But some really important matters, including changes to our constitution, require a two thirds majority.

    The logic is simple - some things are so important that we need more people approving decisions than a simple majority. In particular the rules of the game.

    Now if we have a whole pile of individuals making these decisions, casting a wary eye over their shoulder at the people who elected them, this shouldn't present a problem. However, mix this with proportional representation and the current dominance of one party and you end up with something of a devil's brew.

    Let's put it this way - If you are going to change the more significant rules of the game, you need at least some of the folk who aren't obliged to agree with you on all issues to have some influence on the matter.

    And as things stand, they don't. In fact under current circumstance the sum total of the opposition is entirely irrelevant. Practically, whether the decision requires a simple or two thirds majority is much the same thing.

    That might or might not change in a few days time, but the mere fact that the potential exists for an exceptionally small group to effect major changes at will to both the constitution and its supposed politically independant enforcers is deeply troubling.

    Now I'd like to suggest this isn't the way things should be. There really needs to be some checks and balances on the big issues, particularly given the rather lop-sided nature of South Africa in so many ways.

    So we need a solution. And I have a proposal.

    The percentage of the majority party should be capped at 60%.

    I see a huge number of advantages to this, the main ones being:
    • The majority party will still be able to see to normal business without any material problems.
    • Those really big decisions no longer become unilateral.
    • Opposition politics will at least have a role to play.

    We'll also be rid of a small pile of bench warmers who literally have nothing to do other than cough, cheer, jeer and raise their hands at the appropriate moment - at substantial cost to the taxpayer. But that's just a sideline bonus.

    In the unlikely event that this proposal gains any serious potential of succeeding, there would still be the matter of what to do with with the excess seats if the majority party does gain more than 60% in elections. But that would probably be easier to negotiate and resolve than the idea of a cap.

    A reallocation according to proportional support amongst those minority parties makes the most sense to me right now, but there probably are other options. Right now those details seem less important than the really tough hurdle. So first things first...

    How do you pursuade a majority party (right now make that the ruling party) that there might be merit in such a cap?
    Because without their support the idea is never going to fly.

    Maybe let's start with you -

    What do you think of the idea?
    Do you have any suggestions that might help?
    Last edited by Dave A; 20-Apr-09 at 08:42 PM.
    The trouble with opportunity is it normally comes dressed up as work.

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    Gold Member garthu's Avatar
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    Lot to bite off and chew initially. I think the idea itself is great. Way to much control in one place at the moment - all history will tell us a one party state will lead to the demise of the country and if they get there 2/3 then we will probably see a one party change occurring in the future as this election would have caused some stress, something they will try to avoid in the future.

    The bid question for me would be, yes great idea, but getting it to work?? First, Wednesday will tell alot - if they get 2/3, then it will be a pipe dream. If not, then it would have hope. I don't think the proposal could go through a small party either - would be dismissed out party politics.

    A nationwide poll? Maybe proposal signed ie like a website dedicated to it - get the support from people then present to party?

    I would suspect that someone trying this (Dave you have my support ) would have to prepared to go all the way to Constitutional court?
    Garth

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    Platinum Member Marq's Avatar
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    I know it's supposed to be fair racial discrimination
    Dave....did you read that one out loud.

    I think you are right to question the whole deal. For me there is no fairness in the either of these two issues. No fair = flawed system.

    I think we could go a long way by fixing the first set of problems you sited.

    Representatives elected by the people and then remain accountable to the people who put them there is in my mind a democratic vote.

    Politicians acting in line with their electoral needs rather than party needs is what we need - or we have a one party dictatorship which is what we are seeing.

    We are told we have this great constitution and I am sure it is a really difficult thing to balance it for all - but like you have highlighted in two areas, which for me are not fine even in isolation, I am sure there are many more.
    When it can be used to help get a tin pot dictator or legal heads away from their duties and apparent crimes or plastic pot dictators to run towns and cities into the ground under an open socialist or do nothing banner, then there is something fundamentally wrong with it.

    I think human rights and constitutions are no different than the BS mission and vision statements that large corporation discuss and then chuck back into a dirty cupboard to be hauled out every time they have a finger pointed at them.

    If we could put the amount of energy into building this country and sorting out corrupt and inept politicians, rather than building a pile of words that seem to favour a few and can be changed when not liked; we will become a great nation.

    Our constitution just joins the pile of many 'plans' that these leaders have, in what must be huge store rooms at this stage. When one of them actually opens a plan and starts to follow it and DO STUFF PROPERLY, then we can start talking about what a fair constitution should look like.

    At this stage I see this subject of a constitution as a diversion while the criminals raid our pockets, our minds, and our souls as they take the country into an emerging fourth world country.
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    Gold Member garthu's Avatar
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    Good point, alot to worry about elsewhere. Those issues are up for change, no doubt, but changing the constitution, if gives back alot more power to get rid of the people at the helm that are doing such a crap job now. If each of us were to participate in some form of anti criime, patrols etc, we would have minor impact, if we could control the clown who drives that system - change it completely??
    Garth

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by Marq View Post
    Dave....did you read that one out loud.
    I've read it out loud, upside down, in a mirror, tried to meditate over it...

    I still can't get my head around the term. It just keeps looking like an oxymoron.
    Quote Originally Posted by Marq View Post
    I think we could go a long way by fixing the first set of problems you sited.

    Representatives elected by the people and then remain accountable to the people who put them there is in my mind a democratic vote.
    It certainly seems the idea is being bandied about - without much enthusiasm so far by the looks of things.

    I'd suggest the answer there is "horses for courses." If delivery of services is meant to be at municipal and regional level, that's where you want to be able to hold individuals accountable. And direct representation would seem the way to go. I'd go even further, to suggest that candidates can only stand in the ward they reside. This should be democracy at the most fundamental local community level.

    Take street renaming for example - the local community of that area should have the final say on the issue when it comes to local roads, not some bigger entity.

    On the other hand, there is a lot to be said for proportional representation at national government level.
    Last edited by Dave A; 20-Apr-09 at 08:36 PM.
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member Marq's Avatar
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    Quote Originally Posted by Dave A View Post
    Take street renaming for example - the local community of that area should have the final say on the issue when it comes to local roads, not some bigger entity.
    Amen to that..

    You not standing on Wednesday are you?
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    Site Caretaker Dave A's Avatar
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    And become a politician?

    Not on my to-do list
    The trouble with opportunity is it normally comes dressed up as work.

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    Site Caretaker Dave A's Avatar
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    Prof Pierre de Vos of Constitutionally Speaking has raised the topic of electoral reform. Judging by the comments, there is some thought being put to the matter, although at this point it is only really speculative discussion.

    A comment by Anonymouse takes the thrust of Pierre's thought into considerable detail:
    I would feel quite comfortable with a system couched in the following terms:
    NATIONAL LEGISLATURE AND GOVERNMENT
    1.) 200/400 seats in the NA elected on a party-list (proportional representation) basis (where the ballot is marked only with the relevant parties’ names and insignia - no faces of party leaders - only political parties can compete and no so-called independent groupings may register for this part of the vote);
    2.) 200/400 seats in the NA elected on a constituency basis (where the ballot is marked with the faces of the candidates and the political parties they would represent - here independent candidates may stand and marked as unafiliated or independent candidates);
    3.) A National President to be elected by national voters (either on the same date or a year after the national vote) from the ranks of two or more candidates nominated by the NEC’s of all political parties that obtained more than 5% of the vote in the previous election and who want to nominate a (or more than one) presidential candidate. - If the President is elected a year later than the NA and the Provincial governments, the previous President will remain President until a new one has been elected.
    (THREE ‘NATIONAL’ BALLOTS WILL BE REQUIRED if the latter vote happens on the same date, but only two will be required if it happens a year later)

    PROVINCIAL LEGISLATURES AND GOVERNMENT
    To remain as is - a party-list system with proportional representation - no independents allowed. The NCOP to be elected and appointed according to the criteria and rules that currently exist.
    (THE VOTE IS TO HAPPEN ON THE SAME DAY AS THE NATIONAL ELECTION - four ballots will be required if the President is voted for simultaneously - otherwise three ballots instead of the current two would be required.)

    LOCAL (MUNICIPAL) LEGISLATURES AND GOVERNMENT
    To remain as is - a constituency system - independents allowed.
    (The elections are to be held between 18 months after the national/provincial election; and, if the President’s election does not happen simultaneously with the national one, the two elections can be synchronized for the same day so as to limit the strain on resources.)

    The frequency of the different elections can remain as is. However, for the National and Provincial vote, it may be necessary to extend the vote over two days if the President is elected simultaneously, unless, of course, an electronic voting system can be implemented.
    Quite a few other ideas there too, for those interested in the topic.
    The trouble with opportunity is it normally comes dressed up as work.

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    Diamond Member wynn's Avatar
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    Instead of just a 2/3 majority perhaps an additional 1/3 of opposition parties need to also vote 'aye' to do the necessary big changes.

    eg. when they voted to abort the 'Scorpions' they should besides getting a simple numerical 66.6% yes's from the majority party, should also get a minimum 33% yes's from the combined Opposition, that way there would be more lobbying and consultation and less 'rubberstamping'

    Sounds more 'Proportional' to me???

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    Site Caretaker Dave A's Avatar
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    Nice idea. How's this for a tweak...

    For those big decisions you need a 2/3rds majority, or the equivalent of the majority party percentage plus 10%, whichever is the greater.

    Of course it becomes a problem if the majority party holds 91%, but that would be a truly sad day if the other parties couldn't even muster 10% of the vote.

    I've also put some thought into the origin of the problem in the first place. It really comes down to accountability to the electorate. There isn't any.

    You would expect to be able to hold elected representatives to a higher standard, but parliamentarians don't even seem capable to hold themselves to account. It's not just the JZ issue*, it's things like Travelgate and all the other abuses of position which have emerged from time to time.

    The constitution, which should be ensuring the citizens' interests are being protected, seems powerless to assist as the politicos wield their influence to subvert the legal process which should bring them to order through a theoretically independent judiciary.

    It's frustrating really, because the constitution can't be blamed in isolation. Any one of a number of elements could stop the rot - the parliamentarians themselves, the majority party leadership, the NPA, a meaningful opposition, and ultimately the electorate themselves. Some might note the Constitutional Court is a notable absentee in this list. Ultimately their task is to interpret and apply the constitution as the politics have written it, so a flawed constitution could easily produced less than satisfactory interpretive results.

    The only reason to tinker with the constitution is to achieve responsible behaviour despite the failure of these elements to play their part properly.

    *It was quite warming to hear the conciliatory notes at Parliament yesterday. Moving past the "arms deal corruption" issue as a young ruling party mistake would be worth it if JZ goes on to walk his talk. Perhaps now's the time to give him a chance to prove his mettle.
    The trouble with opportunity is it normally comes dressed up as work.

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