Nkosikhulule Nyembezi
When selfish politicians refer to the spirit of the Constitution and the supporting legislation on good governance, they are often deceptively talking about narrow political party interpretations of a hotch-potch of political conventions combined with ancient charters, precedents, international agreements, legislative bolt-ons and unwritten understandings that have no resemblance to the text of our Constitution and legislation.
They make us believe that a political party wielding centralised power to decide for citizens holds together a crucial thread of the fabric of this messy tapestry, despite the Constitution positioning political parties primarily as vehicles to facilitate human rights enjoyment by the citizens.
That is an underlying assumption: that we can trust every political party leader occupying a political office to behave appropriately.
In the absence of formal legislation governing coalitions, our democracy is heavily reliant on politicians acting with honour and playing fair. What if they don’t? What if we can no longer instantly remove them from office? We may be about to find out if a mayor or Speaker faces a no-confidence vote at any time during their office term, and if they are staring at losing their seat but refuse to quit as office-bearers and barricade themselves in office for long enough to enforce a two-year waiting period before facing a no-confidence vote.
This is a scenario so grotesque as to be scarcely believable. That does not make it an impossible one, if Parliament adopts some proposed problematic clauses in the Local Government: Municipal Structures Amendment Bill. It is published for public comment until August 31 on a raft of reforms in the governance of the country’s 257 municipalities.
A calamity coalition environment in numerous hung municipalities will be challenging without legislative parameters as voters increasingly mandate political parties to govern collaboratively. We cannot say with certainty whether it will be merely rough or utterly catastrophic after the May 29 elections.
But, we can acknowledge that there will be bumps in the road, as some of the proposed amendments could diminish political rights and undermine democracy by removing crucial checks and balances of accountability in councils if passed.
How could such a hideous mockery of democracy be possible? Here, we must take a deep breath and dive into the murky waters of the objectionable proposals.
That municipal structures title gives this legislation a patina of solidity that the democracy-eroding proposals mischievously used to mislead the public at a time when fiscal and governance challenges, corruption, a lack of expert human capital, and political instability rock several councils, including large metros, with the frequent changes of municipal office-bearers causing a breakdown in the delivery of basic services to communities.
We can appreciate that the bill aims to strengthen hung local councils with proposals such as written and binding coalition agreements between parties, election or removal from office of municipal office-bearers by a show of hands rather than secret ballot, and political parties having to obtain a minimum 1% of the valid votes cast in an election to qualify for a seat in a council.
However, it is full of voids and ambiguities threatening to erode existing checks and balances on our representative democracy under a proportional representation system.
It is a superb example of improvising a critical legislative change into existence without thinking through all the potential consequences.
While the bill correctly proposes that the council may remove the office-bearers from office at any time on the grounds of a “serious violation of the Constitution or the law, serious misconduct or inability to perform the functions of office”, it also problematically proposes that a municipal council, by resolution taken by a show of hands, may remove its executive mayor, deputy executive mayor, whip, speaker, one or all members of the executive mayoral committee, “provided that two years have passed”, since their election.
It will be astonishingly dangerous if the country is driven down this perilous highway by selfish politicians threatened by a no-confidence vote, who conveniently decide to time a vote when opposing politicians are on their back foot, the civil service parked in neutral, and the identity of the next government unknown.
The trouble with running a dysfunctional government while waiting for the two-year time limit to kick in is that putting everything together in the interest of good governance could be like trying to resolve the Rubik’s cube while blindfolded.
While solid legislation provides for the requirement to call an election for council members to fill an office-bearer vacancy after an incumbent has lost a confidence vote, it is the political convention that holds together the understanding that a dominant party in the council will not unreasonably delay an election and will not do anything contentious once a transition is under way.
The other suggestion, on which the larger political parties are especially keen, is the introduction of a 1% electoral threshold, which will exclude smaller parties from representation in local councils, limit political choice, produce more wasted votes, and diminish the rights of voters.
Proponents of these clauses may have put this out as a decoy of misdirection. It could be an elaborate feint from political parties composed of many bluffers. Putting this device into circulation might be intended to convince dissidents that it will not get them anywhere if they try to prevent a dominant political agenda by voting to collapse the government.
It could also be part of the scheme to convince smaller parties that they had better offer some concessions if they want to prevent a crash-out that will hurt them as any other party fighting for control over the government.
Sham it could be, but it will be best to prepare for the possibility that dominant parties could try this one on, remembering that some undemocratic manoeuvres in legislative reform start as a bluff, only to become a reality.
The public can forward written submissions and comments to the Department of Co-operative Governance via email at comments.coalitionbill@ cogta.gov.za by August 31.
* Nyembezi is a policy analyst, researcher and human rights activist
Cape Times