The Structure of States - Unitary and Federal States - 2012

The Structure of States - Unitary and Federal States - 2012

 

 

What is a state?

 

Before explaining the structures into which a country can be divided, it may be useful to explain some terminology. The word ‘state’ can refer to the regional areas into which a country such as the United States of America is divided, or it can refer to the national organisation for the governance of a country as a whole.

 

An example of the use of the word in this latter context, is where a criminal prosecution is brought by ‘the State.’ In Britain which is a constitutional monarchy and the monarch is the ‘head of state,’ the word ‘state’ in the national context is replaced with the word ‘Crown’ or some other reference to the monarch; - thus ‘Crown Courts,’ ‘Crown Prosecution Department’ and ‘Rex or Regina v an accused.’

 

Note that the state is not the same as the government, although it is run by the civil service which is headed by the government. The state is permanent, but the government can change from time to time. The difference between the state and the government is most clearly illustrated in systems in which there is a clear separation of the head of state from the government. In the British system, for instance, the Queen is head of state, but not leader of the government. It is therefore equally correct to refer to ‘Her Majesty’s Government’ and to ‘Her Majesty’s Loyal Opposition.’ One of the less obvious aspects of the separation of powers in this context is that a citizen’s loyalty is owed to the state, and not to the government. Similarly, a taxpayer pays taxes to the state, not to the government who runs the state. A more obvious example of the separation of powers in this context is the courts which are an organ of the state, but not part of the government.  Many authorities refer to ‘areas of government’ when referring to all the major organs of state, executive, legislature and judiciary. I have avoided this in these notes, however, referring instead to areas of ‘governance,’ and reserving the use of ‘government’ to the executive so as not to make these notes more confusing than they might be already!

 

Every country has different levels of government. Generally, the division occurs at three territorial levels; municipal, provincial and national.

 

The municipal level relates to the government of a borough, town or city. In this context, South Africa has amalgamated many of its boroughs, towns and cities into larger ‘metropolitan’ regions such as EThekwini which corresponds to the old ‘greater Durban’ area.

 

The provincial level relates to any governing bodies that regulate a region of a country which is larger than the locality controlled at municipal level. In South Africa and Canada the regions into which the country is divided at this level are known as ‘provinces,’ whereas in the United States and Australia, these regional divisions are called ‘states,’ (more accurately reflecting their origins) whilst in Switzerland they are referred to as ‘cantons.’

 

In some countries, a regional unit that occasionally corresponds to a province but is often a little smaller is called a 'county'. In the USA each state is divided into a number of counties, and in this case they comprise a fourth level of governance, although they have few powers.  In the United Kingdom, counties have limited authority over local education, fire services and the police.

 

The powers of government are distributed at these different levels, and the question of whether or not a country is organised on a unitary or federal basis depends on how the powers are distributed.

 

Note – The manner in which power is divided between the central legislature and executive and the provincial and municipal legislatures and executives has nothing to do with separation of powers – ie – separation of powers between legislature/executive/judiciary.

 

Unitary States

 

In a unitary state;-

 

a)    The national legislature is the supreme lawmaking body in the country. 

 

b)    It can allow other legislative bodies to exist at provincial and municipal level, but can overrule them and they are subordinate to it.

 

c)    There is no entrenched (protected) division of power between the national legislature and the state or provincial legislatures. This means that the national legislature can revoke or amend any powers that regional legislatures might have been given previously.

 

There are an enormous number of unitary states including New Zealand, France, Zimbabwe, Namibia, Norway, Denmark and Sweden.

 

What is the United Kingdom?

 

The United Kingdom has always been regarded as an example of a unitary state in the past, but with certain recent developments including a separate legislature in Scotland and Wales together with limited home rule in Northern Ireland, it is starting to become more decentralised in character. Parliament at Westminster retains its sovereignty, however, and can revoke the powers it has granted the regional parliaments. The United Kingdom is therefore more accurately regarded as a ‘decentralised’ unitary system, in the style of pre-1994 South Africa. Prior to 1994, South Africa had provinces with provincial governments that had certain powers granted to them by Parliament, but these powers could be revoked at any time by Parliament which had sovereignty.

 

What is sovereignty?

 

Sovereignty is the quality held by a body which has independence and can make any decision it chooses. A ‘sovereign’ state is a country which enjoys independence and does not need to obtain permission from another state for any of its actions. South Africa has been a sovereign state since the Statute of Westminster was passed in the British Parliament in 1931.

 

A person, body or organ of state enjoying sovereignty is one in whom or in which the authority of the state ultimately resides. In South Africa from 1931 to 1994, sovereignty resided in Parliament, but from 1994 until the present, sovereignty has resided in the Constitution.

 

 

Federations

 

In a federal state:-

 

a)    The powers of government are divided between a central national government for the whole country and the regional governments of provinces or states.

 

b)    This division of power is constitutionally entrenched (protected). 

 

c)    The central legislature has limited powers and the legislatures of each state or province has limited powers. The central legislature may not revoke or interfere with the powers of the regional governments. This means that neither is subordinate to the other; – they are co-ordinate.

 

d)    Wheare claims in addition, that with an orthodox federal system, residual powers are left to the regional governments. By this it is meant that any power or function not expressly given to the central national government by the constitution, automatically resides in the regional governments.

 

e)    Generally a federation can only exist where the constitution rather than the national parliament is sovereign. If a national parliament is sovereign, it has the power to revoke the powers of a provincial legislature. Therefore a country that has parliamentary sovereignty may never be a federation by definition.

 

f)     On the other hand a unitary state has no special requirement with regard to sovereignty. A unitary state may have a sovereign constitution or some other institution of government that is sovereign, be it a parliament, an absolute monarch (such as is the case with Swaziland) or a dictator.

 

Federal states in theory are more democratic than unitary states, as devolution of power allows more expression of the electorate’s will at the local level. In effect, government is brought closer to the people.

 

Examples of federal states include the United States, Nigeria, Australia and Switzerland. In each case the constitution sets out matters upon which the national legislature can make laws, and reserves to the states or cantons a sphere in which their legislatures may make laws and may operate in legal independence of the national legislature.

 

(Even the legal systems can differ from state to state. Whilst most of the US states have systems which are descended from English Common Law, Louisiana, for instance, uses a system based on the Code Napoleon, reflecting its heritage as a French territory, which was purchased by the United States from France in the early nineteenth century. Another notable difference that illustrates the relative autonomy of the individual states, is that certain practices such as the death penalty are permitted in some states, but not in others.)

 

Quasi Federations

 

Quasi-Federations are systems that contain both federal and unitary elements, but lean toward a federal system in practice, as opposed to decentralised unitary systems such as the UK and pre-1994 South Africa, which are predominantly unitary with certain federal elements.

Canada is an example of a ‘quasi-federation.’ Its ten provinces have areas of responsibility over which they exercise exclusive authority and upon which the national government may not legislate. This kind of provision is federal in character.

 

Conversely, however, the national executive may veto provincial bills and disallow provincial acts even where these fall within the area of the provinces’ exclusive authority. Also, unlike the situation pertaining to state courts in the United States, Judges for the state courts in Canada are appointed by the national government.

 

The conclusive factor, however, is that any residual powers are held by the national legislature. This set of factors prevents Canada from having a purely federal system.

 

By and large, however, the national government uses its power of veto sparingly and seldom interferes with provincial governance. There are historical and political reasons for the national government’s restraint. Allowing the provinces more autonomy than provided for in the constitution has helped to defuse the danger of the French speaking province of Quebec from seceding and results in Canada being more akin to a ‘pure’ federation in practice.

 

Germany is an example of an ‘integrated’ quasi-federation. In this case there is an overlap in powers between the central legislature and the provinces and there is also a provincial presence in the national legislature. A glance at the provisions in the South African Constitution with regard to the National Council of Provinces reveals that Germany’s constitution has had an enormous influence on the South African Constitution with respect to the structure of government.

 

Federal States that act like unitary states

 

It is not only quasi-federal states such as Canada, however, that operate in a manner contrary to their theoretical structure in practice. States that are theoretically pure federations in terms of their constitutions may also function as unitary states in practice. In Australia, for example, the national government has used its financial resources to closely control the states, which are dependent upon it for funding. (It should be noted that the question of money has always played a significant role in the structure of government, in keeping with the old adage that ‘he who pays the piper calls the tune.’) 

 

Another example is the erstwhile USSR which described itself as a federation, but was so closely controlled at the centre that it was more accurately a unitary state with some measure of decentralisation.[1] (Financial control was central and the individual republics had little significant individual power).

 

In the United States, which is usually cited as the prime example of a federation, the state governments have also experienced some erosion of their power as a result of the intervention of the national government. The tool used in this particular case has been the power to ‘regulate commerce among the several states’ granted to Congress by the Constitution.[2] Its scope was small at first because the US was initially largely agrarian with little commerce to regulate.  As commerce grew, however, so did the authority of Congress to make regulations that affected individual states. Some of the regulations promulgated under this authority have gone beyond what would traditionally have been considered to be ‘commerce’ and equal rights regulations have also been imposed under this authority on US states which had formerly legislated for racial segregation.

 

One must remember, however, that the United States began as a somewhat loose union of states, even for a federation. Therefore, the strengthening of the national government at the expense of the states’ governments has not yet eroded its essentially federal character. The United States accordingly remains the prime example of a federation.

 

Confederations

 

Another form of government which is somewhat rarer is a confederation. With this system, individual sovereign states set up a common organisation to regulate matters of common concern. The individual states retain control over the central organisation, however, to a greater or lesser degree.

 

The instrument that regulates the central organisation and holds the individual parts together is sometimes more in the nature of a treaty between separate states than the constitution of a single state.

 

The most famous example was the Confederate States of America, although this was somewhat more federal than confederate in nature. Other examples were Germany from 1871 to 1918 and the United Netherlands from 1579.

 

A modern example is the European Union, which has progressed from being an economic trade organisation to taking on some aspects of central government, albeit in a limited fashion.

 

An interesting example of a country which began with strong confederate elements was the United States before the American Civil War of 1861-1865. The United States began as a confederation, which continued until the signing and ratification of the US Constitution in 1789. Although the United States was an authentic federation from 1789 to 1861, it initially had relatively weak national institutions and government. The Civil War had a profound effect on the powers of individual states, and one of the results of the war was the clear negation of any right to secede that individual states might have had before 1861.[3] The change brought about by the Civil War is graphically illustrated by the grammatical manner in which the United States was referred to before and after the war. Before the Civil War, it would have been grammatically correct to say ‘the United States are,’ emphasising the plural nature of the country and the autonomy of the individual states, whereas now we would always say, ‘the United States is.’

 

 

The current structure of governance in South Africa

 

See chapter 4, sections 42, 43, 44, 60, 68, 146, 147, 148 and schedules 4 and 5 of the Constitution.

 

South Africa’s 1996 Constitution provides for three levels of governance; national, provincial and municipal. The 1996 Constitution was influenced by the German Constitution with regard to the structure of governance, and South Africa can now be characterised as an ‘integrated quasi-federation.’ 

 

An Integrated System

 

Integrated systems provide for:-

 

a)         The regional organs of governance to be represented in the national legislature.

b)         They also provide for an overlap in areas of authority between the national legislature and the provinces, hence the use of the term ‘integrated.’

 

The South African Constitution provides for the provinces to be represented in Parliament by means of a second house; - the National Council of Provinces, and provides for an overlap in functional areas of competence, hence the similarity to the ‘integrated’ German system.[4] (See sections 42, 60 and 68 of the Constitution).

 

A Quasi-federation – Federal Elements

 

With regard to South Africa’s structural status as a quasi-federation, several federal elements are present. 

 

1)         Constitutional Sovereignty

 

The first point to make in this regard is that although constitutional sovereignty is not an attribute which is unique to federal systems, it is a fundamental prerequisite of federal states, nonetheless.

 

Since 1994, the South Africa Constitution has had this attribute, and section 2 of the 1996 Constitution provides that the South African Constitution is the supreme law of the Republic. 

 

2)         Provincial Structures

 

Secondly, the mere existence of governance at regional level, in this case the provincial legislatures, is a necessary (though not in itself conclusive) element for the existence of a federal structure.  Nine provinces are created in terms of section 103 (1) of the Constitution.

 

3)         Exclusive Areas of Authority

 

Thirdly, the provinces have their own exclusive areas of authority, (in addition to other areas of authority which overlap with that of the national government.)  In terms of section 43, legislative authority vests in Parliament in respect of the national sphere of governance, the provincial legislatures in respect of the provincial sphere, and the municipal councils in respect of the local sphere.

 

The actual spheres of authority over which the provincial and municipal legislatures have authority are spelt out in Schedules 4 and 5 of the Constitution.

 

Schedule 4 provides a list of functional areas over which the national and provincial legislatures share concurrent (overlapping) competence. This list includes functional areas of both provincial and local competence. This contains some important areas of authority, including those of health and education, for instance.

 

Schedule 5 lists functional areas over which the provinces have exclusive competence and also lists functional areas over which the municipalities have competence but are subject to oversight from the provinces in terms of section 155 (6)(a) and (7).

 

It should be noted that the provincial functional areas of exclusive competence are extremely limited, whilst the municipalities have no functional areas of competence that are not subject to oversight from the provincial administrations.  Nevertheless, the areas of exclusive functional competence given to the provinces comprise a specifically federal element. 

 

Since these areas of exclusive functional competence are constitutionally protected and cannot be revoked by Parliament without amending the Constitution, South Africa can no longer be considered to be a decentralised unitary system as it was in the past.

 

Factors that militate against a federal structure – intervention, conflicts and residual powers.

 

There are several factors which prevent South Africa from being a true federation, however.  An important test is the power of the national legislature to intervene in an area of provincial competence in specific instances. Another test is the question of which level of governance prevails in the case of a conflict between national legislation and provincial legislation. A third and conclusive issue is the question of where any residual powers not specifically provided for in the Constitution reside. 

 

1)         Intervention

 

Section 44 (2) permits Parliament to intervene in provincial affairs by passing legislation with regard to a matter falling within an exclusive functional area of the provinces listed in Schedule 5 when it is necessary, inter alia, for national security, to maintain economic unity, to maintain essential standards and to prevent unreasonable action taken by a province which might be prejudicial to the interests of another province or to the country as a whole.  

 

It is important to note that the Parliament may not intervene whenever it pleases, but merely under a limited set of circumstances.  If these do not exist, Parliament may not intervene in exclusively provincial areas of authority listed in Schedule 5. This limited power of intervention is therefore not conclusive as to whether or not South Africa is a federation, but it does tend to weaken the federal elements of South Africa’s structure.

 

2)         Conflicts

 

a)         In accordance with South Africa being an integrated system, the Constitution provides for certain functions to be shared between the national and provincial legislatures, and their authority is therefore ‘concurrent’ in this regard. These areas of authority are listed in Schedule 4 of the Constitution.  The provision of concurrent areas of authority creates the potential for conflict, of course.

 

Section 146 provides a mechanism for resolving conflicts between national legislation and provincial legislation in respect of any of the functional areas listed in Schedule 4 (concurrent competence). It stipulates that national legislation which applies uniformly over the country as a whole prevails over provincial legislation, provided that certain conditions relating to the need for national uniformity or security listed in section 146 (2) are met. 

 

b)        National legislation also prevails over provincial legislation in terms of section 146 (3), where it is aimed at preventing unreasonable action by a province that may be prejudicial to the economic, health or security interests of another province, or of the country as a whole. 

 

It is important to note, however, that where the conditions set out in these two subsections do not apply, provincial legislation prevails over national legislation in terms of section 146 (5).   This means that whilst national legislation will prevail in the particular circumstances set out in section 146, provincial legislation will prevail in all other circumstances involving the areas of authority listed in Schedule 4.

 

This section therefore provides a mix of outcomes in a clash between national and provincial interests.  Whilst the national legislature will prevail in a conflict situation affecting the functional areas that are within the concurrent area of competence of the national and provincial legislatures, provided certain specific criteria apply,  provincial legislation will prevail if these specific criteria do not apply.  It is therefore impossible to decide whether or not South Africa has a federal system from the provisions relating to conflicts alone. Nevertheless, as the default position – that is  an absence of the specific criteria set out in section 146(c), leaves schedule 4 authority in the hands of the provinces, this section has implications which are more federal than not.

 

c)         Section 147(1) provides for conflict between national legislation and a provision in a provincial constitution with regard to issues listed in subsections (a) to (c).  Section 147(1) generally treats the provincial constitutions as provincial legislation, and therefore achieves a similar effect to that envisaged in sections 146 and 44(2) (which it specifically mentions,) with national legislation prevailing in specific circumstances.  Section 147(2) provides that national legislation which is enacted in terms of section 44(2) for the purpose of intervening in matters of exclusive provincial authority that fall under Schedule 5, prevails over provincial legislation.      

 

d)        Finally, if the courts are unable to resolve a dispute concerning a conflict between national legislation and provincial legislation or a provincial constitution, national legislation prevails in terms of section 148.

 

The effect of all these sections is that the national legislature can intervene in provincial governance in a wide ranging but specific set of circumstances, and in the case of conflict with provincial legislation or a provincial constitution, national legislation will prevail in particular, though not in all circumstances.  Where these particular circumstances do not apply, the provincial authority will apply, this being the ‘fall back’ or default position, so to speak.

 

This generally supports the idea that South Africa might be a federation, albeit a weak one given the number of situations in which national legislation will prevail.  This is not absolutely conclusive, however, as reference needs to be made to the residual powers.

 

3)         Residual Powers

 

The only issue that remains is the question of where any residual powers not specifically provided for in the Constitution reside. 

 

Section 44 (1) (a) (ii) gives the National Assembly power ‘to pass legislation with regard to any matter, (italics mine) including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5…’   A provincial legislature, however, is empowered by section 104 (1) (b) only to pass legislation with regard to matters within the functional areas listed in Schedules 4 and 5, those matters assigned to provinces by national legislation and any matter for which a provision of the Constitution envisages the enactment of provincial legislation.

 

This means that the national legislature has authority to enact legislation in respect of any area except those from which it is specifically prevented by the Constitution, whereas the provincial legislatures may only pass legislation in respect of those areas over which they have been specifically given authority.  The result is that any power not specifically given to the provinces resides in the national legislature.  The residual powers accordingly vest in the National Legislature.

 

This prevents South Africa from being regarded as a federation, but enough federal elements exist to regard South Africa as a quasi-federation rather than a unitary state.

 

Note:- Whether or not a country is a federal or unitary state has little or no direct bearing on the issue of the separation of powers. It therefore has no bearing on whether or not a country follows the Westminster or Presidential system of governance. Separation of powers has more to do with the relationship between the legislature, the executive and the judiciary, than the relationship between national and provincial legislatures, which is what the federal or unitary structure of a state reflects.  Students should be wary of confusing these concepts.

 

 

 

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[1]           The Union of Soviet Socialist Republics was founded in 1922 toward the end of the Russian Civil War, which followed the Bolshevik revolution of 1917. It arose from a union between the Russian SFSR and other soviet socialist republics which had previously been part of the Tsarist Russian Empire. By the time of its demise in 1991 it had added several conquered territories and comprised 15 such republics. The Soviet Union was a single party communist system, with a planned economy and was a highly centralised state. (The acronym ‘USSR’ translates to ‘CCCP’ in Russian.) Soviet republics are states in which all state power is vested in ‘soviets’ or councils of employees. Soviet states are not necessarily one-party or communist, although they are generally associated with both of these phenomena.

[2]           Article I, Section 8, Clause 3 – Constitution of the United States of America - [The Congress shall have Power] ‘to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.’  See also the Civil Rights Act of 1964; Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); and Daniel v. Paul, 395 U.S. 298 (1969).

[3]                      It should be noted that the original thirteen colonies that joined in rebellion against Britain in 1776 each viewed themselves as sovereign states which had joined together for the common purpose of ending Britain’s authority over them. The United States had a confederation type government from 1776 to the end of the revolutionary war in 1783, and from then until the adoption of the Constitution in 1789. The success of the ‘Federalists’ in convincing the Constitutional Congress to adopt a federal constitution was spurred by the post war financial difficulties experienced by several of the individual states. Nevertheless, the impulse for the ‘liberty’ of confederalism was resilient, and the powers of the central government and Supreme Court were initially far less strong than they were later to become during the course of the 19th century, and especially after 1865.

 

[4]               The Courts have, however, held that caution needs to be exercised in the use of comparative case law relating to the division of powers in other countries; - Ex parte Speaker of the National Assembly: In re Dispute Concerning the Constitutionality of Certain Provisions of the National Education Policy Bill No 83 of 1995 1996 (3) SA 289 (CC), 1996 (4) BCLR 518 (CC) at par 2.

 

Electoral Systems

Electoral Systems

 

‘…..when people can freely ditch their rulers, it gives those rulers an incentive to govern a bit better.’

 

Robert Guest – The Shackled Continent Macmillan 2004 at 50.

 

 

‘The best argument against democracy is a five minute conversation with the average voter.’

 

Winston Spencer Churchill

 

 

‘Democracy is the worst form of government except for all those others that have been tried.’

 

Winston Spencer Churchill

 

 

‘I am as much for government by consent as any man, but where shall we find consent?’

                                   

Oliver Cromwell

 

‘When annual elections end, there slavery begins’.

John Adams

‘AND because Elections ought to be free, the King commandeth upon great Forfeiture, that no Man by Force of Arms, nor by Malice, or menacing, shall disturb any to make free Election’.

-       The (first) Statute of Westminster – 1275 (King Edward I)

 

1)        Introduction

 

‘Democracy’ means ‘rule of or by the people.’ For democracy to exist, a large proportion of the general populace as opposed to a select aristocratic class, or an autocratic ruler, must decide on the laws by which they will be governed. This legislative function can be direct, in that those with the right to vote (the electorate)[1] can vote directly for or against the passing of legislation. The first democracies were small city-states and due to the small numbers of voters, were able to operate in this fashion. 

 

Usually, however, the legislative function operates indirectly as modern states are too large to have each voter voting for or against legislation directly. This means that in modern states, the electorate is represented by representatives elected to a body comprising some sort of parliament, which is responsible for passing legislation on the electorate’s behalf.[2]  The electorate by means of an electoral system chooses these representatives. This is what is meant by ‘representative’ as opposed to ‘direct’ democracy.

 

‘Closely allied with party as a potent primary force in the development and modification of a constitution is the electoral system.  ..…The system of election adopted in a country and the distribution of seats may determine the party composition of the legislature and the strength or weakness of the executive.’

-       K. C. Wheare – Modern Constitutions

 

 

The above statement briefly describes an interesting phenomenon caused by electoral systems. Obviously, the prime function of the electoral system is to ensure that the will of the people is expressed by making certain that the representatives that the people have chosen to represent them, will obtain seats in the legislature.   However, the electoral system chosen by a country also has the potential to effect:-

 

a) the composition of the legislature;

 

b) the influence of political parties;

 

c) the strength and influence of the party leadership;

 

d) the power of the executive and even the fashion in which the legislature operates, in a manner not necessarily intended by the drafters of a constitution. 

 

All electoral systems have their advantages and disadvantages, and many attempts have been made to devise the perfect system which eliminates the unintended consequences, although none of these have been entirely successful.  Briefly, however, different electoral systems produce different results.

 

 

2)        Unintended consequences

 

Two factors come into play to create the unintended consequences referred to above;-  the electoral system and party based politics.  These two factors working together create an indirect but potent effect on a state’s constitution and government.

 

a)        Composition of Parliament

 

With regard to party political representation in a legislature, one can take the same group of voters, and have them vote for exactly the same parties, but achieve an entirely different majority in the legislature, depending on the electoral system used.

 

The form of electoral system adopted by a country therefore has a profound effect on the distribution of seats and the composition of the legislature with regard to party strength. 

 

b)        Strength of the Executive

 

This in turn can determine the strength or the weakness of the executive, as the more support its party enjoys in parliament relative to other parties, the freer the executive will be to pursue its own policies.

 

c)        Party leadership authority

 

The electoral system can also affect the amount of influence and authority the party leadership enjoys in relation to the individual MP’s who belong to it.   The party leadership will be strengthened or weakened depending on the extent to which it can exert pressure on its own members in a legislature to toe the party line.  Certain electoral systems facilitate this kind of party influence more than others.

 

d)        Executive influence over its party members in the legislature

 

Since the party leadership of the ruling party usually comprises the executive, this factor also affects the strength of the executive in a different manner from that indicated in b) above.  Certain electoral systems will enable the executive to extract more loyalty and support from its members in the legislature than will others, leading to the domination of the executive over the legislature.  This may lead to the Legislature not being able to operate in the manner envisaged in a constitution, particularly should the legislature have been given an oversight role.

 

e)        The number of parties in the legislature

 

Certain electoral systems, such as proportional representation, have a tendency to allow a large number of smaller parties in Parliament, whereas others, particularly plurality systems tend to eliminate small parties and allow a smaller number of large parties.  Furthermore, there is a tenancy for systems with a large number of smaller parties represented in a parliament to have weaker executives. The largest party in this kind of system frequently lacks sufficient numbers to form an overall majority, and it therefore needs to form coalitions with other parties in order to remain in power. This inevitably means that it is necessary for the party with the strongest support to compromise. Whilst a certain amount of compromise is good in theory, it can paralyse the executive and prevent the passing of necessary but unpopular laws. This occurred in France under the Third and Fourth Republics, even though the French Constitution provided for extensive executive powers. It also happens in Israel from time to time.

 

 

3)        Different Electoral Systems

 

As intimated above, electoral systems are not all the same, and each system produces different results. What follows here is by no means an exhaustive list, but merely an introduction to two of the more popular types of system, which have been selected as they have both played a role in the South African constitutional narrative.  There are also several sub-categories of these two systems which will not be mentioned here.

 

a)        Constituency Based Systems - (also ‘first past the post’ or ‘plurality’ systems)

 

The constituency based electoral system is used in Britain, where it originated, as well as the USA and much of the Commonwealth. It was also the system used in South Africa prior to 1994.

 

·         Based on constituencies

 

With a constituency based system, the entire country is divided into districts, theoretically with a roughly equal number of voters in each.  Each of these districts is called a constituency, and is responsible for electing an MP[3] to represent it in Parliament.

 

·         Each constituency elects a representative

 

This means that each prospective MP stands for election to a particular seat in the particular area comprising the constituency, and the MP canvasses support in that area, trying to persuade the voters in that area to elect him.  Because the voters in a constituency elect a MP to represent them as a specific community in Parliament, the seat[4] occupied by the elected representative is identified with reference to the constituency, rather than by reference to the MP as an individual.  In fact, when an MP is referred to in the British Parliament he is referred to as the ‘honourable member’ for whichever constituency he represents, rather than by his name.

 

·         The system does not make allowance for parties per se

 

The constituency system was in place in England by the end of the 13^th century, long before the emergence of political parties at the end of the 17^th century.  Therefore, the constituency system does not make allowance for political parties per se, although the party system has been superimposed on it.  This means that although these days voters usually vote for a party in practice, in theory they are voting for a particular individual to represent them.  As indicated above, the MP appears in Parliament as ‘the honorable member for Lambert North,’ or whatever constituency he happens to represent.

 

Because he has been elected as an individual first, and only coincidentally (at least in theory) as a member of a party, it is possible for a member of parliament to justify ‘crossing the floor’ and changing parties as he can claim to have the voters’ support for him as a person. This indeed can be the case occasionally, and it is not unusual to have an ‘independent’ with no party affiliations whatsoever winning a seat if he is popular enough with the local voters.

 

 

Strengths

 

·         The representative is directly responsible to the people who elected him

 

The main benefit of the constituency system is that the member is directly responsible to the people that elected him.  There are usually rules providing that the member must have a dwelling place in the constituency and there is pressure on him to represent the interests of the people living in the constituency. The member might therefore press for the protection of his constituency at a national level, be it to improve services and infrastructure, the protection of an industry that gives employment in the area, or support for moral issues that his constituents support, such as anti-abortion or anti-drug abuse legislation.

 

The member needs to spend time in his constituency, hence the longer annual Parliamentary recess in Britain compared with South Africa. This keeps national government closer to the electorate and alive to the issues that they believe to be important.

 

·         Constituency pressure acts as a counterweight to the power of the party and the party leaders

 

A further benefit is that constituency pressure acts as a counterweight to the power of the party and the party leaders.  An MP needs always to be looking over his shoulder at his constituency and what they are thinking.  If the party leadership wish to follow an unpopular course of action or are involved in a political scandal, the ordinary MP needs to think twice before following their lead.[5] Indeed, if he is personally involved in political scandal, the party is unable to protect him from the electorate, unless his constituency approves of his actions.  On the other hand, if his political party angers the electorate, floor-crossing might sometimes occur in order to protect the MP’s relationship with the electorate in his constituency, rather than because of attractive career offers from another party.[6]

 

·         Favours the growth of big parties

 

Finally, the constituency system tends to favour the growth of big parties as small parties, even if they have a fair amount of support spread thinly nationally, are unlikely to have enough support within any single constituency to win any seats. This has a tendency to encourage the emergence of ‘two party’ systems, that is; systems where two major parties predominate. This is pre-eminently the case in the USA with the Republican and Democratic Parties and has tended also to be the case in Britain with the Labour and Conservative Parties gaining the majority of seats between them, and the Liberal Democrats tending to come a poor third.[7]

 

The advantage is that the party with the most votes does not have to cobble together a coalition with smaller parties in order to form a government. It therefore has a clear mandate to pursue the policies that it stood for in the election. Coalitions are inherently unstable and involve compromise, which means that the government lacks a clear mandate from the electorate. The executive paralysis typified by the Third and Fourth French Republics is therefore avoided.  There is a negative side to this phenomenon, however, which is mentioned below. Confuse

Weaknesses

 

·         Distortion of parliamentary party support

 

As noted above, the constituency system was never designed to take the existence of political parties into account.  It is geographically based and is designed to provide for the representation of the people living in each district in the country. As a result, there is no direct correspondence between the support each political party enjoys from all the voters nationally, and the number of seats it holds in Parliament. Therefore it does not reflect accurately the support that each party enjoys among the voters nationally. (The record of support that each political party has received from voters at an election overall nationally, is known as the ‘popular vote’.) At best, it can reflect the support a party may enjoy within each individual community comprising a constituency, in which the party has endorsed a candidate.

 

The major weakness of the constituency system stems from this. Because the system is based on geography rather than party support, it tends to distort the extent of support that each party has from the electorate as a whole, in that it allows parties with fewer voters in total to have more seats in Parliament and vice versa.  This means that the number of seats held by each party does not reflect the proportion of the ‘popular vote’ held by each party. [8]

 

The distortion happens at two levels: –

 

a)    Nationally - The individual representing the party that has the most votes in a given constituency wins the seat.  Any votes cast for any candidate other than the winner and the party he might represent in the constituency are wasted, in that they fall away. This is why the system is sometimes called the ‘first past the post’ system or ‘winner takes all’ system. – ‘Coming second’ counts for nothing. Because the losing votes in each constituency are effectively discarded, they count for nothing, whereas they still feature in the popular vote, which has no function in constituency electoral systems. 

 

b)    Within each constituency – The distortion can be even worse where there are more than two competing candidates in a particular constituency. This causes a multiple split in the voting, with the winner achieving the support of less than 51% of the total number of voters, but winning the seat, nonetheless. This means that the person winning the seat in a particular constituency might have the more votes than any other candidate, but not the majority of votes in the constituency overall. This exacerbates (increases/makes worse) the distortion between the seats obtained by parties in Parliament and each party’s share of the popular vote.

 

Modifications of the plurality system such as those used in Australia where voters have an ‘alternative vote they can use for a ‘second choice’ candidate help to ameliorate (improve) the latter distortion within the constituencies internally. However, these modifications do little to improve the distortion at a national level, caused by losing votes falling away. 

 

 

Some modifications to the system, which allow for second choices, ameliorate the problem of candidates winning with the largest minority in the case of multiple candidates within single constituencies. These modifications still fail to correct the overall problem, however, namely that the system is geographically rather than party based. 

 

The individual who is successful in winning the seat (particularly if there are a number of candidates standing for smaller parties, each of whom receive a proportion of the votes,) may not win a majority and only receive a relatively small proportion of the overall votes in the constituency, although more than anyone else. (See the attached diagram for an example of this). Should this process be repeated in all the constituencies around the country, the total number of votes gained by the various parties will rarely correspond closely to the total number of seats won by each party in the legislature.

 

This phenomenon is graphically illustrated by the victory of the National Party in South Africa in 1948. The National Party which won the election by virtue of winning the majority of the seats in the House of Assembly only won 39.4% of the popular vote, whereas the United Party won 53.3% of the popular vote, but won fewer seats in the house. Had a party list system been in place at the time, the National Party would not have come to power and the worst excesses of apartheid might have been avoided.

 

·         Delimitation difficulties

 

The distortion that occurs between seats in the parliament and the popular vote is encouraged by delimitation issues.

 

            Impossibility of Precision

 

In theory, each constituency ought to contain the same number of voters. This is obviously almost impossible to achieve with complete precision, and would be impossible even if the conditions in each constituency were exactly the same. 

 

Rural Overrepresentation

 

The conditions are not the same, however, and there is an enormous difference between the circumstances of urban and rural constituencies in particular. There is a natural tendency for rural areas to be overrepresented in comparison to urban areas.  The sheer number of voters packed into urban areas in comparison with thinly populated rural areas leads to rural areas being overrepresented, despite attempts to make the numbers roughly equal by having urban constituencies cover a smaller physical area.  This is because there is a limit to the size of the territory a rural constituency can include without becoming impracticable.

 

A further reason for overrepresentation is that rural voters tend to move less often than urban voters who sometimes fail to re-register, having moved to a new place of residence.

 

            Gerrymandering

 

In addition to this, support for parties is seldom uniform across a country, and parties will enjoy more support in some areas than in others, due often to factors such as social class and employment patterns, or in countries such as South Africa, race. Political parties are often supported along class, employment or racial lines. Governments are therefore tempted to manipulate the delimitation of constituency boundaries to favour governing party electoral support. This means that they arrange to have constituency boundaries drawn so as to allow less wastage in respect of areas where they are strongly supported, and dilution of opposition support in areas where the opposition is strong.  This practice is called ‘gerrymandering’.

 

The boundaries of constituencies are drawn by delimitation commissions, and the extent of influence that the government has on these commissions and the extent to which they are independent will greatly affect the incidence of gerrymandering.

 

 

·         Discouragement of small parties

 

Finally, the constituency system tends to discourage the growth of small parties. Small parties favouring particular interest groups (such as ‘green’ parties with an environmental agenda) which have thinly spread but significant national support rarely can garner enough support in particular areas to win constituencies.  This has positive benefits, as mentioned above, but it also has a negative aspect.  The issues small parties support do not necessarily receive attention in the parliament, and the need for larger parties to form coalitions is not always a bad thing as it does encourage compromise.

 

b)         Party List – (proportional representation)

 

The party list or proportional representation system is designed to avoid the distortions that occur with the first past the post system. It operates from a premise that fully recognises the existence of parties.

 

With this system:-

 

i)          There are no constituencies.

ii)         As there are no constituencies there are no constituency candidates and a list of potential MPs is drafted by each party instead.

iii)       The electorate vote only for the party.

 

After the election the total number of votes is added up and the seats in parliament are allocated to each party in proportion to the number of votes out of the total that each party has received.

 

The MPs in parliament do not represent a particular constituency, but instead represent a particular party exclusively.  If there is floor crossing on the part of MPs, then the proportional number of MPs each party has in Parliament no longer reflects the proportional electoral support that each party enjoys.

 

Strengths

 

·         Accurate reflection of party support

 

This is a system that is specifically designed to deal with the reality of the existence of political parties. Its major strength is that the electorate’s wishes are accurately reflected in the number of seats allocated to each party in the parliament. 

 

·         Allows for the presence of small parties

 

It also allows for the presence of small parties in the parliament. Those small parties that manage to garner sufficient support nationally will gain one or more seats, even if their support is too thinly spread across the country for them to ever win any constituency based seats.[9]

 

Quite often with plurality (constituency) systems, even large parties will not bother to put up a candidate in a constituency where they are unlikely to win, which means that supporters of that party within these constituencies are unable to vote for a candidate who stands for the party of their choice.  With the party list system, however, no votes are ever wasted, and voters can feel free to vote for whichever party they wish, no matter where they reside.  The amount of support a party might have locally is irrelevant as votes are only used in a national pool. 

 

 

 

 

Weaknesses

 

·         MP’s become subservient to the wishes of the party elite

 

The main weakness of the Party List System is that the MP’s are completely dependent on their parties and therefore become subservient to the wishes of the party elite.  This means there is little independence of thought. 

 

Parties have immense power to determine which candidates get elected.  The party leadership drafts the party list and MP’s are appointed rather than elected to seats from the party lists.  Candidates and current MP’s are both constrained to conform to every aspect of the party policy and the wishes of the leaders in the party hierarchy in order to secure a place on the party list.  Since MP’s are appointed to seats in accordance with membership of a party and inclusion on a party list, dismissal from a political party also means automatically losing one’s parliamentary seat.

 

·         Voters have no contact with or influence over their representatives

 

Voters have no direct influence over who the candidates are and unpopular candidates who nonetheless enjoy support with the party hierarchy can be elected.  There is little opportunity for individual MPs to promote personal issues and no regard need be taken of issues that are important to communities at a constituency level.

 

This weakness is exacerbated by the growing strength of the executive in government internationally, irrespective of electoral system, given that the executive is usually comprised of the party elite. The strengthening of the executive at the expense of the legislature becomes more pronounced with a party list electoral system.

 

·         The existence of a large number of parties

 

Because the PR system allows a large number of parties to have seats in the legislature, there is the potential that no single party will have enough strength to form a government, and coalitions will have to be formed. The disadvantages that may flow from this have been listed above.

 

 

4)        The growing strength of political parties and the executive

 

It is worth noting that political parties have grown in strength over during the course of the 20^th century.  One of the causes has been the increasingly expensive modes of electioneering that have come into use, including both print and broadcast media advertising, together with posters and the more traditional public addresses, which also require the hiring of facilities.   The growing need for campaign funding affects all types of electoral systems and even in constituency based systems, an independent candidate without the support of a political party needs to have considerable funding from somewhere in order to have any hope of success.

 

This has made members of the legislature more dependent on political parties than might have been the case a century ago.  The dependence on political parties makes members dependent on the party leadership which is often, in the case of the governing party, is to be found occupying positions in the cabinet.   The executive therefore has more influence over its members in the legislature, than was previously the case.   In the United States where there is stronger separation of powers, this trend is not quite so pronounced.  Ironically, however, it is in Westminster style systems where the legislature is given an oversight role in respect of the executive, that party leadership will more likely to be found in the cabinet.  

 

The result is that the executive has grown in influence and will often be in a position to manipulate the legislature.  The PR system exacerbates this phenomenon.

 

 

5)        South Africa

 

The party list system of proportional representation is the system currently used in South Africa, and is provided for in terms of s 46(1)(d) of the Constitution.  In the case of South Africa there has been no difficulty for the ANC to form a government, however, as it currently enjoys an enormous majority in Parliament, almost unhealthily so.  Therefore the frequent need for governments in countries utilising a party list system to obtain the support of other parties in order to form a government has not been evident in South Africa,[10] although there has been a proliferation of smaller parties in Parliament that would generally be excluded in the context of a constituency system.

 

The unusual strength of the governing party in the South African context, notwithstanding the party list system, has much to do with its credentials as a liberation movement and the particular history and sociology of South Africa.

 

On the other hand, the lack of constituency accountability is a real problem and the power of the party elite is evident in all the political parties, leading to little independence of action on the part of individual MP’s.  Some parties have assigned their MP’s artificial ‘constituencies’ whose needs they are supposed to represent and this appears to be the policy of Parliament as a whole now[11].  The difficulty, however, is that these MP’s lack sufficient time away from Parliament to perform this function properly, and may not necessarily have any real connection to the ‘constituency’.  In any event, there can be little incentive to represent the wishes of the constituency when it runs contrary to that of the party leadership, or even spend time trying to do constituency work.[12]

 

 

6)        German Hybrid

 

Whilst it is almost impossible to devise an electoral system which avoids all the disadvantages of the two systems discussed, without also being impossibly complex, Germany has found a relatively simple compromise, merely by combining both systems and using them simultaneously.

 

‘Germany has a unique system of “topping up representation,” for half the Bundestag[13] is elected by proportional representation and half by single member districts. 

 

Each voter has two votes – the first is used to elect a constituency representative by the simple majority method and the second vote is given to a party list.  To qualify for the distribution of proportional representation seats, a party must win at least five per cent of the total national vote or obtain victory in at least three constituencies (Wahlkreis). The barrier was set at this height to prevent the representation of extremist parties and the proliferation of small parties, both considered problems fostered by the Weimer electoral system.

 

The distribution of seats at the constituency level is usually disproportional as it is done by simple plurality.  For example, in 1972 the Social Democratic Party (SPD) won 46 per cent of the vote and 61 per cent of the constituency seats whereas in 1976 when its vote dropped by 3 per cent, its share of constituency seats dropped almost 15 per cent.

 

However, the award of half the seats by proportional representation compensates effectively for the disproportionality of the plurality distribution.  Germany uses a strict party list system of PR but voters can express a preference for individual candidates at the constituency level.

 

The 1983 Federal election results reveal that that percentage of seats obtained by each party corresponds very closely to the percentage of list votes obtained.  Furthermore the Green Party for the first time obtained seats in the Bundestag by winning over 5 per cent of list votes.  The Green Party, like the Free Democrats, obtained all their seats from party lists.’[14]

 

This system has been adopted in South Africa in respect of municipal elections.

 

Although the German system offers great potential improvements to the current South African electoral system, it remains a compromise with the defects inherent in each system still being present to some extent. For instance, there are still distortions between each party’s share of the popular vote and the number of constituency based seats allocated to each party. This distortion can only be partially corrected by the accuracy achieved from half the seats being allocated on the basis of proportional representation and party lists. In other words the distortion is reduced, not eliminated.

 

At the same time the fact that half the seats are allocated proportionately and filled by means of party lists means that half the MP’s have no constituency links. This means that half the MP’s are subject to the normal problems with subservience to the party leadership, which the use of proportional representation entails.

 

7)           The Reynolds System

 

The Reynolds System is another system which may be very useful potentially, but it was rejected during the negotiation period.  It involved a 400 member parliament, 300 of whom would be elected within 37 multimember constituencies. The remaining 100 members would be appointed via party lists. In this case, however, the appointment of the party list members would be intended only to correct any distortions which may have occurred between the popular vote and the number of constituency seats won by each party. 

 

This has the advantage of ensuring that most of the MP’s would represent constituencies, whilst there would be a completely accurate relationship between the popular party support and the number of seats held by each party in the house.

 

The multimember constituencies are arguably a weakness, however. They clearly comprise an attempt to ensure that second and third choice candidates in constituencies also get parliamentary seats, but this is arguably an unnecessary complication, given that overall party support at national level would be accurately reflected in seat allocation in any event. Furthermore, a greater number of constituencies, that is 300 instead of 37, would probably be better than just 37. The greater number would enable constituency boundaries to be smaller and each constituency MP to be responsible for a more concentrated and defined area, without any ‘passing of the buck’ to other MP’s sharing the seat.

 

Ineffectual Elections

 

Although the election process is the essential to democracy, elections do not necessarily ensure that democracy occurs. In fact it is a trait of modern dictatorships that they legitimise themselves by holding elections.

 

‘During the 1990’s, virtually every African State held elections of some sort. If one ignores countries that only became independent after 1990, such as Eritrea and (de facto) Somaliland, the sole laggard was the inaptly named Democratic Republic of Congo. All this is admirable, but there is more to liberty than voting. ….With few exceptions, African ruling parties still use the apparatus of state to keep themselves in power. Public radio sprouts their propaganda, public money pays for bags of grain to hand out on polling day, and the police arrest their opponents for jaywalking. Few African governments are peacefully voted out of office.’

 

Robert Guest – The Shackled Continent    Macmillan 2004 at 48-49.

 

There are many ways of rigging an election.

 

1.         One method is to interfere with constituency boundaries in those systems where constituency systems exist. This ensures that the governing party wastes as few votes as possible in a first past the post system, or alternatively, constituencies can be demarcated so as to allow for fewer voters in safe government seats, whilst opposition areas are larger, containing more voters. An indirect manipulation happened in South Africa during the pre- 1994 era, where rural government supporting constituencies had fewer voters than urban opposition supporting constituencies, resulting in over-representation in Parliament.

 

2.         Another method is to interfere with the voters’ roll. This can be done most crudely by preventing opposition voters from registering, either by threatening them or by confiscating their identity documents.

 

One can also interfere with the roll by failing to remove the names of dead people from the roll, or add them, and then manufacture votes for them at the election. Election fraud on this scale requires the connivance of election officials, of course.

 

3.            Another fairly crude method is the interference with ballot boxes. There are various methods of doing this, but one way is to manufacture extra votes and add them to a ballot box, in the hope that no reconciliation will take place, which also requires the connivance of the election officials.

 

4.            A fourth method is threat and intimidation. This varies in degrees from the most blatant to the more subtle. The most blatant involves the express threats to or the beating of rival party supporters, forcing them either to refrain from voting or to vote for the party of the persons who have administered the threat.  Another variation is to control and withhold vital services, such as food supplies.

 

‘As long as you value the government of the day, you will not starve, but we do not want people who vote for the colonists and then come to us when they want food. You cannot vote for the MDC and expect ZANU-PF to help you…..You have to vote for ZANU-PF candidates……before government starts rethinking your entitlement to this food aid.’

 

Abednico Ncube;- Zimbabwean deputy foreign minister addressing villagers in Matabeleland. – International Crisis Group – Zimbabwe: The Politics of National Liberation and International Division – Harare/Brussels 2002 at 4.

(www.crisisweb.org) 

 

 

---

[1]           The ‘electorate’ consists of those persons who have the ‘franchise,’ and are entitled to vote. A word with a similar meaning is ‘suffrage,’ often used to describe the extent or nature of the franchise, eg; - ‘universal adult suffrage.’

 

[2]           Direct voting on a particular issue by the electorate itself may still occur by way of a plebiscite or referendum.

 

[3]           ‘MP’ is an acronym for ‘Member of Parliament’ and appears after the name of a member of the legislature in states that use ‘Parliament’ as the title of their legislatures.

 

[4]           That is ‘seat’ in the figurative sense of a parliamentary ‘post’, rather than the actual chair on which the MP would be seated.

[5]           Please note that this does not mean that ‘in the constituency based system the electorate does not vote for parties’ or that the party has no influence, as some students have claimed in exams. It merely means that party influence is less pervasive than it is in party list proportional representation systems. Parties have a significant and growing role in modern constituency based systems, however.

 

[6]           Please note that floor crossing is more justifiable, not necessarily more prevalent in constituency based systems, as students sometimes claim.

 

[7]           Due to the party with the largest support not being able to obtain a clear majority, the 2010 British election has resulted in the first coalition government in Britain since 1945. The unusual nature of this occurrence can only be appreciated when one considers that the coalition which existed from 1940 to 1945 was a wartime coalition put in place to deal with a special situation, and the Conservative party, which was the strongest party at the time, did have a clear majority and was able to form a government on its own.

 

[8]           The total number of votes cast in an election nationally, without reference to constituency divisions is known as the ‘popular vote’.

[9]           The South African National Assembly has 400 seats, therefore with a PR electoral system a party would require at least 0.25% of the popular vote in order to win a single seat.

[10]          An interesting fact which should not be ignored, however, is that the ANC is currently involved in a type of extra-parliamentary ‘coalition’ with the Communist Party and COSATU, the trade union organisation. Its alliance partners use the ANC as their political expression in Parliament, and do not have their own representation there.  COSATU could form its own ‘labour’ party or give political support to the Communist Party if they ever became dissatisfied with the present alliance, whilst the Communist party could electioneer on its own ticket.   Whilst neither of these scenarios are likely in the short or even medium term, the alliance appears to be undergoing serious strains at present.

 

[11]          For instance, funding has been made available for ‘constituency work’ and there is discussion of such constituency work both in Parliament and on the Parliamentary website. It is difficult to imagine any parties other than the ANC and DA being able to even consider such work, however, given that none of the other parties have more than a handful of seats in Parliament and would be quite unable to be active in more than a handful of ‘constituencies’.

[12]          ‘The panel noted how tenuous the links are between Parliament and the electorate. It noted various initiatives to strengthen these, including establishing “parliamentary democracy offices” and assigning or deploying MPs to “constituency offices”. But it is absurd to talk of assigning MPs to constituencies that should have elected them in the first place. Suzman was not deployed to Houghton. Houghton sent her to Parliament.’

John Kane-Berman - Voice of the people — or is it the party?  - Business Day - Posted to the web on: 05 February 2009

[13]          The ‘Bundestag’ is the German legislature.

[14]          Extract from the unpublished Masters research paper of Noreen Nobin.