Martin van Staden: The dilemma of regulating coalitions in South Africa’s political landscape

In the pursuit of certainty and stability in government, South Africa faces a critical decision on regulating coalitions. Martin van Staden contends that while certainty is crucial for long-term planning and investment, it must be balanced with good policy. The government’s proposal to address dysfunction through regulations may have unintended consequences, potentially eliminating constructive minor parties and concentrating power in major parties. Van Staden argues that instead of rushing into legislative restrictions, the focus should be on maturing the political culture to ensure better policy and sustainable predictability in the future.

Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.

Coalitions: Our desire for ‘certainty’ and ‘stability’ must be measured, not absolute

By Martin van Staden*

Certainty in policy and stability in government are crucial, not only as a practical matter but also as a fundamental pillar of the rule of law. But our deep, almost instinctual desire to guarantee certainty must always be measured against context. Pursuing certainty at any cost will land us in trouble.

Some weeks ago the Presidency published the ‘Concept discussion document on the Development of a Framework for Coalition Governments’. Long story short: the government wants to regulate coalitions in the name of certainty and the associated notion of stability, after witnessing ‘dysfunction’ at the municipal level following the 2016 and 2021 local elections.

The document notes, ‘The instability that is experienced at the local sphere of government is affecting the nation-building project. If it is not responded to coherently, it will render the state unworkable and unable to deliver on its mandate. It seeks to forestall any similar instability at the provincial level or in the central government, come 2024.

The Presidency has asked experts and stakeholders to look into various aspects of coalition government in preparation for a ‘National Dialogue’ on the question. These include:

‘Regulatory reforms looking into the current electoral system, regulation of coalitions, thresholds for entering Councils and other legislation;’

‘Culture necessary for coalitions, role of electorates, possibility of limiting votes of no confidence, secret voting by office bearers, etc.;’

‘Dealing with stability in the upcoming elections and exploring policy interventions.’

The National Dialogue will take place next week, on 4 and 5 August, in Cape Town.

Read more: Composition of coalition “pact” government on the agenda at historic national convention

The importance of certainty

We have seen business leaders over the last few decades pleading for ‘policy certainty’ ̶ as opposed to ‘good policy’. While some entrepreneurs have been specific about what kind of political reform they would prefer, in general the business community has adopted a posture whereby it defers the choice of policy to the political class, so long as it does not constantly change.

This is understandable. It is unsettling, especially for business, to not know ‘what’s next’. Business also likely does not want to seem to be entering the political realm by ‘undemocratically’ directing what kinds of policies government should and should not be adopting.

It is true that certainty is a crucial aspect of the rule of law: legal subjects must be enabled to plan ahead, especially far ahead.

As a matter of principle, it shows a fundamental respect for legal subjects not to burden them with new dispensations that force them to up-end their own affairs and arrangements. It helps bolster the recognition of the legal subject, as opposed to the agenda of politicians, as the centre of the political universe.

Certainty as an aspect of the rule of law also has a practical dimension. Some investments, for example, only yield a return after decades. When someone decides to make such an investment, they need to be certain that by the time they begin to profit from it, government would not in the meantime have rendered the investment worthless. This is, for example, why businesses in mining and agriculture are especially keen on certainty. Banks also want certainty in the real estate market to ensure that the mortgages they approve today can be paid back over years or decades.

I elaborate on the key importance of certainty, because I believe we nonetheless overemphasise it.

Read more: Cronje: Voters say DA’s W Cape template shining ever brighter; Great AGOA news

Good policy vs certain policy

Certain bad policy is obviously better than uncertain bad policy. Uncertain good policy, however – where we are uncertain about the detail of policy but are guaranteed that it can only get better – is better than certain bad policy.

But nothing beats certain good policy.

South Africa finds itself squarely in the midst of uncertain bad policy – we do not know ‘what’s next’, but we are pretty confident that it will be bad.

Business, and in the context of coalitions, ordinary South Africans, by not insisting on good substance for future policy, are opting to settle for certain bad policy.

While ‘stabilise the coalitions’ is a noble rallying cry, the cost can be great. And I venture to say it ‘will’ be great, because the government that will be responsible for the stabilisation is by no means a neutral actor.

The regulatory reforms it introduces could include eliminating constructive minor parties – like the African Christian Democratic Party – in favour of almost perfectly destructive major parties – like the Economic Freedom Fighters (EFF). This is what could happen if a ‘threshold’ is introduced where parties must attain a minimum percentage of the vote before they can qualify for a seat in a legislature.

This would be bad policy because it misses the point, but it would nonetheless achieve a higher degree of ‘certainty’.

Indeed, the problem with coalitions is not ‘small parties’ or even ‘micro parties’, as these are legitimate features of a democracy committed to proportional representation. The problem with coalitions is South Africa’s political culture, and that is not something legislation or regulation can easily fix. Certain political parties, big or small, collapse governments because they desire patronage, position, and prestige.

The African National Congress (ANC) and EFF, big parties, are just as motivated by patronage, position, and prestige as any micro party is, so it is arbitrary to focus on the micro party – say, the Patriotic Alliance, or the African Transformation Movement – as somehow being the spoiler of a coalition government simply because it is small.

This reality can only be noticed if there is a desire for good policy over certain policy.

Read more: DA celebrates two by-election wins – reports PA’s vote-buying dirty tricks

Regulating coalitions in a democracy

I am sympathetic to some limitations on motions of no confidence in order to stabilise government, although it is a door that I am uneasy about opening.

While it makes sense to say a party may not bring more than one motion of no confidence per quarter (say), if we cede the principle, it will be difficult for us to argue against the ANC in the future should they seek to introduce a prohibition on more than one motion of no confidence (from the whole opposition) for an entire parliamentary term. It is all about certainty, after all.

We must think about the long-term implications of the reforms we advocate today during an emotional moment of yearning for stability.

As someone who believes firmly in introducing institutional restraints on democracy, I just as firmly oppose this being done legislatively.

There should be (and are, but arguably insufficient) constitutional restrictions on democratic practices and institutions, to ensure that democracy does not itself threaten liberal values like individual freedom, private property, or limited government. When we allow the restrictions to come from ordinary legislation, however, we are ultimately begging for whoever is in control of a legislature to promote their own partisan self-interest.

This would not necessarily only be the governing party, as the official opposition in a legislature (by definition, the second-largest party) will also tend to support such restrictions, as it would limit competition from their own smaller opposition.

There is no good way to go about regulating coalitions in a democratic dispensation. Our desire for certainty and stability, while understandable, might lead us down a path where we have not taken adequate cognizance of unintended and unforeseen consequences.

Let us rather do the hard work of maturing our political culture, which will not only yield better policy, but also more sustainably ensure predictability in the long run.