Democracy does not need to be a horse race

By: Steven Friedman

IF we think court cases are only about who wins and who loses, we will not know how the courts apply the law. If we think politics is only about who wins and who loses, we will never discuss the issues democracies need to address.

Media reporting and public discussion of two recent electoral court cases show clearly that the mainstream view in this country is that court judgement and politics really are only about who wins and who loses. In both, aspects of the court’s decision which reflect on how democracy ought to work here were ignored. And so there was no discussion of important issues which affect democracy’s health .

In the first ruling, the court rejected an attempt by the African National Congress (ANC) to overturn the Independent Electoral Commission (IEC) decision to register the Umkhonto we Sizwe Party (MK) as a political party. It gave full reasons for its decision.

Media coverage and debate fixated on the court’s finding that the ANC did not object to MK’s registration in the time allotted by the law. (The ANC either didn’t notice MK’s registration when it happened or didn’t think it was a problem until the party turned out to be a vehicle for former President Jacob Zuma). So the headlines and the reaction focussed on MK’s win over the ANC because the ANC failed to get the objection process right. No other aspect of the judgment was mentioned.

It is true that the court said the ANC had no standing because its objection was late. But this is not all that it had to say. It also said that it had the power to overlook the lateness of the ANC’s objection. Its reasons for not doing this became clear when it discussed the principle which it believed was at stake in the case.

A Basic Right

The court declared that ‘at the heart’ of the section of the law which deals with registering  political parties ‘are the political rights enshrined in section 19 of the Constitution’.  The section was ‘aimed at ensuring that every citizen can form and register a political party. That, therefore, means that the said section should be interpreted in a way, which facilitates the formation and registration of political parties as against hamstringing it.’

In other words, when there is a dispute over whether to register a party, both the IEC and the court should assume that it should be registered if this is at all possible within the law – the purpose of the law is to allow parties to register, not to create obstacles, because forming a party and contesting elections is a right.

This view – that it should be as easy as possible for parties to contest elections – is shared by the constitutional court, which recently sharply lowered the number of signatures parties who have never won seats must gather to make it onto the ballot paper.

On one level, this makes an important democratic point – that everyone has the right to form or support a party and that suppressing parties is not only undemocratic but counter-productive. The people who support the party will not change their view if it is not allowed to contest elections – they will simply find other ways to express it which may be more damaging than allowing the party to stand. Parties should not be able to use the law to suppress opposition.

The IEC seems to agree. One of its problems is parties who adopt logos and names very similar to other parties, presumably in the hope that supporters of the party they are mimicking will vote for them in error. This seems to be a sound reason to prevent a party contesting. But the IEC has chosen rather to separate parties with similar names or logos on the ballot paper in the hope that this will ensure that voters do not mistake a rival party for the one they support. So the party stays on the ballot and  steps are taken to prevent voter erro

But court rulings designed to make it as easy as possible to contest may make democracy more difficult.  The country already has well over 300  registered parties. A ballot paper with that many names would be unmanageable for voters who would find it hard to make their choice. So some way must be found to limit the number of parties who contest.  Ideally, it should exclude parties which have no reasonable hope of winning a seat.

There are two ways of  doing this – insisting that parties and candidates pay a deposit which they lose if they do not have enough support or requiring them to show support by collecting signatures from voters. Both are used in this country.  So far, courts have reduced the number of signatures parties need but not the deposit they must pay.

This sends an undemocratic message – that whether you can contest depends on how much money you have; not how many people support you. It seems unlikely that this is what courts want to say but the effect is that money, not support, is the key to making it onto the ballot.

These are among the issues for debate raised by the ruling. They have been ignored because the debate was far more interested in who was winning or losing a race.

All Power to the President

The second judgement overruled the IEC’s decision to bar Zuma from contesting the election because the constitution does not allow anyone to stand if they have been sentenced to a prison term of one year or more. The sentence – fifteen months in jail – was imposed by the Constitutional Court.

We don’t know why the court decided this because it has not given reasons. But exchanges between the judges and lawyers during the hearing suggest that it may have decided that Zuma was not sentenced to fifteen months because the President decided to order his release after three months. This, Zuma’s lawyers said, meant that he had been sentenced only to three months and so was entitled to contest.

If that was the court’s reason, we should be worried, whatever our view on Zuma and the MK Party.

The court would then be saying that the President is entitled to override the Constitutional Court by changing a prison sentence it had imposed from 15 months to three months. Presidents are allowed to reduce prison sentences by ordering prisoners’ release. But that does not mean they are changing the sentence –  they are simply deciding that, for some reason, it should not be implemented.  The section of the Constitution in question says people are not eligible to stand if they have been sentenced to more than a year in prison, not that they must serve more than a year. So, if that is why the court overturned the IEC’s decision, it is saying that a President can change a sentence imposed by our highest court.

If Presidents can change constitutional court judgements, why stop at changing prison sentences? Why not allow them to ban opposition parties or lock up their opponents, whatever the court says? If the ruling is allowed to stand does this not open the way to the end of constitutional democracy?

Given how much is at stake, we should expect the debate to be demanding that the court give its reasons and to be warning that, if it does believe the President can override the constitutional court, democracy here is in deep trouble . But this issue has been entirely ignored – again the only issue is who won and who lost. Who cares whether constitutional democracy is threatened when the debate is busy tipping a race?

The reaction to the two court decisions is a problem for democracy but is not a great surprise because it is not only court judgements which our media and the debate reduce to a horse race – it is everything.

The country is in the midst of what we are told is the most important election since 1994. While that may well be an overstatement,  this is the first election since democracy began here whose result is in doubt. Given this, we should expect a campaign in which the issues facing the country and what parties will do about them is hotly debated.

That is not what we are getting. As usual, there is much talk of who will win or lose but very little on what needs to change (besides the party in government) and how it would be changed. It is usual in elections to ask on which issues the battle is being fought. The only issue in this election seems to be whether we should trust one group of politicians or another.

As long as that persists, the country will not debate the problems it faces and policy on all issues will be what a few politicians decide it should be. Until the debate moves beyond the horse race, the people will not be part of the discussion on what the country needs to do.

Prof Steven Friedman is a research professor at the University of Johannesburg, faculty of humanities, politics department, and writes in his personal capacity.