In the two previous parts I’ve looked at the most obvious causes of our current “state of capture”. Because they all relate to the laws on our statute books (including our supreme law, the Constitution), the only way to remove them peacefully is though the ballot box.
Credit: South African History Online, www.sahistory.org.za
That means we have to determine which of these changes require changes to the Constitution, which will make it a lot harder to get the necessary parliamentary majority (a two-thirds majority in the National Assembly, plus the support of at least six provinces).
By the way, I once called the Constitution “holy” in a comment, and I still think so, but even the Vatican needs its leaking taps fixed. It’s the principles that are holy, not the plumbing. In fact, at the moment the leaking taps are flooding the holiness.
I’m not a lawyer, and it would be nice if someone with knowledge of constitutional law could weigh in on this. Better even: start a collaborative project to draft the necessary improvements to our laws and Constitution. That’s one thing democrats can learn from the global lobby industry: they always have a draft of proposed new laws or changes to legislation ready.
So here is my take, wide open to correction:
Part 5.1: Political finance
My take: 50% majority.
Regulation of private political finance does not form part of the Constitution, basically because it doesn’t exist anywhere. Here’s what the Constitution says about political funding:
Funding for political parties
236. To enhance multi-party democracy, national legislation must provide for the funding of political parties participating in national and provincial legislatures on an equitable and proportional basis.[1]
This seems to leave things in the hands of national and provincial legislatures, as long as some kind of funding is provided. So as I understand it, only a 50% majority is required to change and expand the current law dealing with public funding[2] to include further requirements: ensure that sufficient public funds are provided to properly fund our democracy, and prohibit private donations.
Part 5.2: Regulation of political party elections
My take: 50% majority
The Constitution does not mention this explicitly. My guess is that this issue can be solved by changes to the Electoral Commission Act[3] and by adding capacity to the IEC. (By the way, a thumbs-up to the IEC for publishing all the relevant laws on their site!)
Part 5.3: Electoral representation
My take: 50% majority.
The recommendations of the Electoral Task Team required no changes to the Constitution. (Click here to download the report.)
Here’s what the Constitution requires in terms of electoral representation – the requirements relate to the composition of the National Assembly:
46. (1) The National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that […]
(d) results, in general, in proportional representation.
The requirement for the Provincial Legislatures is the same (104).
The shelved Electoral Task Team report[4] required no changes to the Constitution. I see no reason why any other form of Mixed Member Proportional Representation should. All that should be necessary are changes to the Electoral Act.[5]
Part 5.4: Powers of the president
Certain: Super-majority
The powers of the president are described in detail in Chapter 5 of the Constitution.
Part 5.5: Civil servants and business
My take: 50% majority
This is also not a constitutional matter. At most changes to the Public Service Act of 1994[6] and Public Service Regulations, 2001[7] should be needed, together with changes to the Public Service Regulations of 2016[8]. There’s even a possibility that changes to the latter document will suffice.
Part 5.6: Conclusion
So things are looking good in my judgement – it seems that of all the conditions to get our democracy back, only the powers of the president requires a two-thirds parliamentary majority. And to make the changes that require a simple majority would already go a long way to deliver us from capture.
But before completely abandoning the idea of attaining a super-majority in the near future, in the next part I’m going to look if there’s any chance of the ANC supporting these changes, and thereby making a super-majority possible.
Footnotes
Click on the footnote number to go back to where you were.
[1] Chapter 14: General Provisions, Other Matters.
[3] http://www.elections.org.za/content/Elections/Laws-and-Regulations-Elections
[4] Report of The Electoral Task Team, 2003, p. 13.
[5] http://www.elections.org.za/content/Elections/Laws-and-Regulations-Elections/
[6] http://www.dpsa.gov.za/dpsa2g/documents/acts®ulations/psact1994/PublicServiceAct.pdf, Chapter VII.
[7] http://www.dpsa.gov.za/dpsa2g/documents/acts®ulations/regulations1999/PSRegulations_16_07_2004.pdf
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