Floor crossing: don't blame the Constitutional Court

We are now right in the middle of the distasteful spectacle officially known as the “floor crossing window”. It is a sad spectacle that undermines public confidence in politics and it should be changed. This much almost everyone with a modicum of integrity agrees on.

But many people – including some informed journalists – have gone further, blaming the Constitutional Court for not declaring the legislation unconstitutional and arguing that the Court had suffered a self-inflicted wound because of this decision. I, however, am not so sure this criticism of the Court is justified, although I think the Court's credibility did (wrongly) suffer because of their Floor Crossing decision.

It is important to remember that the legislation which legalized floor crossing at national level was in fact two amendments to the Constitution. In the United Democratic Movement v President of the RSA the Constitutional Court made it clear that when Parliament amends the Constitution in the constitutionally prescribed way, these new provisions of the Constitution cannot be challenged because they are in conflict with any of the other provisions of the Constitution.

The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. There is therefore very little scope for constitutionally challenging amendments to the basic law. If Parliament amended the Bill of Rights to scrap the right to property, say, the Court will not be able to do anything about it – as long as Parliament followed the correct procedure in doing so.

Those who challenged the amendments to the Constitution had to argue that the amendments were so far-reaching that they undermined the “basic structure” of the Constitution or that they were inconsistent with the founding values in the Constitution which guarantees a “multi-party system of democratic government” and thus had to be passed by a 75% majority of the National Assembly. But it would be exceedingly difficult to show that the amendments were so far reaching that it basically abolished democracy.

The unanimous Court agreed that the system of floor crossing in South Africa may not have been the best way to arrange our democratic system. However, it argued that this did not mean that democracy itself was being abolished. Where laws prohibited political groups from organizing, promoting their views through public debates and participating in free and fair elections, there would have been a fundamental interference with multi-party democracy and this would have been constitutional problematic.

But floor crossing merely allowed members of Parliament to change parties half way through the life of the Parliament. This is less problematic, say, than the Westminster first-past-the-post system in which all the votes cast in a constituency for the losing parties are in effect wasted.

The Court also pointed out that many parties (including the Democratic party of Tony Leon) argued vociferously in favour of floor crossing during the constitutional negotiations. For the court to interfere with the amendment of the Constitution to allow floor crossing – a politically contentious issue on which parties differed and had often changed their minds – would bring the Court into the overt political arena, which would impinge on the separation of powers principle.

Given this context, I think it is difficult to imagine the Court finding cogent constitutional reasons to declare the constitutional amendments invalid - which does not mean the provisions are good or wise, of course.

The biggest problem with the present system of floor crossing is that it allows two window periods in the life of the legislature for members to change political parties without losing their seats – as long as at least 10% of the parties members in that legislature crosses the floor.

The 10% threshold favours the ANC and disadvantages every other party because nationally more than 27 ANC MP’s of the National Assembly would have to cross the floor to another party to make it valid, while a single crostitute can validly cross the floor from any party with less than 10 members in the National Assembly.

I think the system could be made better if this threshold was lowered to 2%. This would also make the ANC vulnerable to floor crossing and would thus make it more fair. I am also in favour of a 2% threshold for a party to obtain any seats in the National Assembly. This would immediately eradicate all the smallest parties from Parliament and this would be a good thing. Most of these one member parties are formed because their leaders can become party leaders in the National Assembly and thus can acquire more perks. Such a 2% threshold will make it impossible for people to jump ship to one person parties.

In Germany there is a 5% threshold for membership of the Legislature and this has eradicated smaller parties with sharply partisan or narrow interests. Smaller parties in Germany are forced to come together and to build consensus and this moderates their platforms.

In South Africa a 2% threshold will also force parties to form coalitions and to work together - something that might become very important if we want to hold South Africa together and want to make sure that populism and ethic politics do not take hold here.

The votes “wasted” on parties who failed to get the required 2% would then be distributed pro-rata to the other parties. That way, only serious parties with demonstrable support would ever make it to the legislature.