#50ansMoris: Yes, we can de-ethnicise the Constitution, foster nationhood and promote inclusion (Part 2)

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The author suggests the appointment from outside the Parliament of 25% of Ministers from civil society, NGO and other individuals based on their expertise in their fields.

Introductory remark 

Our country is in a tight legal and constitutional bind. On three counts. First, the Supreme Court still awaits the stand of the State on the case brought against it by Rezistans ek Alternativ with respect to the mandatory disclosure of the community of a candidate contesting an election. Government keeps asking for a postponement as it cannot decide on the course of action. Second, the Privy Council has warned that failure to resolve this problem politically will cause the matter to be raised before the Judicial Committee as the Constitutional rights of our citizens continue to be infringed. Third, the United Nations High Commissioner for Refugees (UNCHR) tasked Mauritius to provide an effective and enforceable remedy for such violation of rights. We had 180 days from August 2012 to communicate our decision and almost six years later, we have dismally failed to do so.
 
The Golden Jubilee celebration of our Independence represents a unique opportunity to stop the unacceptable classification of our compatriots into four arbitrary ethnic grids. One solution is a Constitution and an electoral system that are not community-based.

An electoral system that fosters nationhood and accommodates diverse representation

Pr Guy Carcassonne (L), former French jurist, and Albie Sachs, a former judge on the Constitutional Court of South Africa, were commissioned to work on the electoral system in Mauritius.

I propose a roadmap to de-ethnicise our Constitution and our electoral system while ensuring broad based Parliamentary representation to reflect the diversity of our country. 

The main components of the reform would be as follows:

i) do away with the mandatory requirement to disclose one’s community to stand as candidate. There should be no arbitrary, discriminatory and unreasonable criteria that prevents our citizens from exercising their legitimate rights to be a candidate for elections ;

ii) remove all references to community identity and different ways of life from our Constitution. As a result both the Constitution and the voting system will be expunged of communalism;

iii) introduce a mixed electoral system by adding a dose of Proportional Representation (PR) to the existing First Past The Post (FPTP) voting formula so as to secure rainbow representation through a different mechanism ; 

iv) maintain the 20 three-member constituencies in the Island of Mauritius and add one seat to Rodrigues to make it a three member constituency. There will be a total of 63 FPTP MP returned on the same basis as today;

v) include a dose of PR with the election of 20 party list members. This will give a Parliament of 83 MP with 76% of FPTP members and 24% of PR members. The FPTP mode will thus constitute the core element of the mixed electoral system because of its stability, governability and decisiveness features;

vi) subsume the 8 BLS into the 20 PR seats. The objective of diverse representation remains while the mechanism to ensure its attainment is replaced by a new system. The case for such subsumption has been very well articulated by both the Sachs Commission and the Carcassonne Commission. This is also how it is done in multiracial, multilinguistic and multireligious countries such as South Arica, Belgium and Northern Ireland. Other countries, such as Germany, New Zealand, Lesotho, Wales, Scotland, Japan also use a dose of PR to ensure diversity of parties and gender. It is a tried, tested and trusted formula for inclusion and fair representation;   

vii) return the 20 PR MP through a closed, rank-ordered party list. Parties should constitute their list both in terms of numbers and rank to broadly reflect the diversity and plurality of the country;

viii) allow double candidacies where candidates will both appear on the Party list and compete in FPTP constituency elections. If a candidate is not elected in the constituency, he/she has the chance of being returned from the PR list. The basis for this flexibility is so obvious in our electoral system. It acts as a very robust alternative to the Best Loser System (BLS) by giving a second chance to some unsuccessful candidates. It is also standard practice in countries with mixed FPTP/PR system;

ix) give additional reassurance, if necessary, through one of the following three measures. First to afford some flexibility for the last four of the 20 PR seats to be allocated on a closed but not necessarily a rank-ordered basis. Second, to allow two candidates to be placed on the same rank on the PR list on an either/or basis. And third, to create a subset of four PR seats from the 20 PR seats and have a separate list of candidates from which to allot them. Those familiar with the algorithm of electoral system will fully appreciate how this will impinge on the diversity of Parliament. It is not my preferred choice as I believe the simple rank-ordered party list as it exists in most countries will do the job. However this flexibility is a small price to pay to de-ethnicise both our Constitution and our voting system;

x) ensure gender fairness by having no more than two candidates of the same sex in each of the 21 constituencies. We should equally provide for party lists so that neither gender represents less than 33% of candidates. And we need a narrow ‘zipper’ so that there is at least one person of a different gender out of every three sequential candidates on party lists ; 

xi) provide for at least one third of Cabinet Ministers, Parliamentary Private Secretary (PPS) and other Parliamentary posts to be of either gender. As well argued by Justin Trudeau, we are in 2018. This is not a privilege but a fundamental right;

xii) have a minimum threshold of national vote for parties to be eligible for the 20 PR seats so as to preserve social harmony and national cohesion. It is a difficult balancing act between the genuine democratic rights of small parties that have a key role in our political landscape and the high risks of an atomisation of the system. I prefer to be safe  than sorry and therefore recommend a threshold of 10% of national vote to be eligible for PR seats. Even Sachs, who is a very staunch supporter of small parties, saw the risks of fragmenting the political system and recommended a 10% hurdle. Other Commissions have also gone for a 10% threshold;    

xiii) choose a formula to allocate the PR seats so that we strike a good balance between fairness to parties in terms of the vote to seat ratio and the stability and governability of the system. If the formula were too fair, it could sacrifice stability and effectiveness. If it were too timid in attenuating the unfairness of the FPTP, the defect of large disproportionality between votes polled and seats obtained would remain. There are few options that can be considered to reach an acceptable compromise;

xiv) decide whether there should be one or two sets of vote. One set (three votes as is the case today) will return the 63 FPTP MP. These same votes could also be considered as votes for the respective parties to allot the PR seats. Alternatively , there could be a second vote where electors will choose their preferred party;

xv) require the party lists in regard to the allocation of the PR seats to be submitted to the Electoral Commissioner’s office and published on Nomination Day. The lists will inform electors of the composition and rank of each party;

xvi) ascertain what happens in case of a vacancy for FPTP MP and PR MP. We should follow best international practice. There should be a by-election for FPTP MP and a replacement MP from the same party for a PR member;

xvii) determine what  happens in case MP cross of the floor. This is straightforward for a PR MP as it is the party that has appointed him or her. Therefore, he/she should be automatically replaced by another candidate from the Party if he/she defects. In case of constituency MP, it is trickier as he/she has been elected ‘nominally’. Therefore, the same procedure cannot apply. He/she retains the seat until the next election. Unless we adopt a new legislation on floor crossing with clear rules and regulations;

xviii) broaden the pool of Ministerial appointments. Our system does not provide too much of a wide choice to select Ministers as the pool to draw talents, experience, skills and expertise is very limited. The overwhelming number of countries recruit Ministers from a much larger talent pool, often from outside the realm of party politics to answer the ‘power without competence dilemma’. Even the UK, which is the cradle of our system of democracy, has abandoned this closed system and has embraced a government of all talents. The three most senior Ministers in France, including the Prime Minister (PM) – Edouard Philippe, Gerard Collomb and Nicolas Hulot – are not MP. The current Indian Minister of Finance and the Minister of Textiles lost the elections to the Lok Sabha and still became Ministers. Kenya changed its Constitution for all Ministers to be appointed from outside Parliament, similar to the Seychelles. Morocco, Rwanda, Ethiopia, and all French Speaking African countries appoint Ministers from outside Parliament for their expertise, experience and skills, while being accountable to Parliament. The Attorney –General and the Speaker in Mauritius may be appointed from outside the Parliamentary caucus. Our Best Loser system also allows unsuccessful candidates to be returned to Parliament and to become Minister (Alain Wong currently). It is high time to evolve the system. And it could also help in promoting diversity. While we do not have to follow France or Kenya, one compromise would be to give the flexibility for the appointment of 25% of Ministers from civil society, NGO and other individuals based on their merit and their expertise and experience in their specific fields. Their appointment and accountability could be similar to what obtains for the Attorney General. Or it could be done through a bi-partisan Committee of the National Assembly.

The above proposed electoral system is certainly not perfect. However, it has the features to take the country forward in many ways and can constitute a strong basis to de-ethnicise our Constitution and de-communalise our electoral system. It is also fair to political parties, equitable to women, delivers well on diversity and inclusion in political representation and maintains the stability of the system. It is highly accountable and responsive as it keeps the vital links between constituents and their elected representatives. And it will also promote harmony and foster nationhood.

The Independence celebration is a moment in time to ignite our ardour for enhanced nation building.  For far too long, emotion, passion, fear, irrationality and partisan politics have carried the day and dominated the debate. It is now time for informed judgement, evidence-based comparisons, reason, lucidity and nationhood to take over and show the way ahead. We can also demonstrate to the world that, as decent, smart and intelligent people, we can rise to the occasion and continue to act as a responsible country in providing an effective and enforceable remedy to the UNHRC so that the fundamental rights of our citizens are upheld. And show that it is perfectly possible for diversity, inclusiveness and broad based political representation to bloom without the opprobrium of constitutional community classification and an ethnic driven electoral system.
Let us hope that the Ministerial Committee set up to make recommendations on this issue will rise to the occasion, be inspired by the absolute necessity to foster nationhood and shape a Mauritian identity with shared values and citizenship. And that it will propose to de-ethnicise the Constitution and the voting system while ensuring broad based political representation. Yes, we can do it.





#50ansMoris: Can we de-ethnicise the Constitution while ensuring broad based representation? (Part 1)

Mauritius will celebrate its 50th Anniversary of Independence this year. The event is significant as it is a milestone in the life of a country. It is typically time to remember the past, to rejoice the present but also to reflect on our future. Time to take stock of our collective wealth of experience and examine our progress as a people. It has not been an easy journey. We have come a long way as one of the few sub Saharan African countries that have successfully made the structural transformation from an agricultural to a diversified economy and increased both the income and the standard of living of its population.

John Stonehouse (2nd from left), the British Secretary of State for the Colonies, arrived in Mauritius on 27 June 1966 to hold talks on the future electoral system, following the controversial recomendations of the Banwell Report.

Socially, we provide free education, free health care, a relatively good welfare state and we have reduced poverty and raised the human development index. We are probably the only robust democracy in Africa with free, fair and regular elections that deliver frequent alternations in power and have a free press. Even if some developmental challenges remain and we are stuck in the middle income trap with economic inequality rising, it is an outstanding achievement as there was nothing that predestined Mauritius for such relative prosperity and human development. If anything, it underscores the pragmatism of the country since Independence in proving wrong some experts who prophesised a bleak future for us.

Regrettably, against this remarkable socio-economic and democratic progress which is hailed globally, we have not been capable, after 50 years of Independence, to find an acceptable compromise to remove the consecration of communal identity from our Constitution and our electoral system and to foster nationhood while promoting political inclusion and broad based parliamentary representation. The current ignominious classification of our population in four arbitrary ethnic silos is against republican values and tantamount to allowing the cancer of communalism to vitiate the very foundation of our democratic framework and our social fabric. It legitimises communalism, strengthens ethnic identities and inhibits nation building.

It is a blot on our impeccable record, a stain on our exemplary image. It damages our reputation, smears our brand, distorts our character, undermines our ethos and degrades our values. Especially as there are other viable mechanisms to promote diversity of representation as they exist in several plural societies. The 50th anniversary of our freedom constitutes a unique opportunity to reflect collectively on how we could find a workable solution to put an end to this predicament, to respond to the many human rights and judicial criticisms made against us and more importantly to consolidate and strengthen the nation where our fellow citizens cease to be categorised on the basis of their so called different ‘ways of life’. What is required is the shaping and the consolidation of an enhanced Mauritian identity and the sharing of fundamental citizenship values as a source of augmented nation building. And one key component of this agenda is the deethnicisation of our Constitution and our electoral system.

The rationale underpinning the community based voting formula

40 Gerrymandered single FPTP constituencies

The voting formula is a legacy of our colonial history and of specific context and circumstances. The seeds of community inclusion in our Constitution and the electoral system were sown in the 1957 London Agreement signed by all stakeholders after a great deal of political bargaining. In view of the deep divisions among the major political parties, it was agreed that the electoral system had to meet two criteria that conceptually appear to go against each other.

The results of the last 40-member constituencies’ general elections held on Monday 21 October 1963 (cover page of l’express of 23 October 1963).

(i) to facilitate the development of voting on grounds of political principles and party rather than on race or religion; and

(ii) to provide an adequate opportunity for all the main sections of the population in Mauritius to elect their representatives to the Legislative Council in numbers broadly corresponding to their own weight in the community;

‘We hope, however, that it will prove possible for all parties in Mauritius to agree on the ultimate disappearance of such political arrangements for communities.’

There was an acrimonious debate on how to choose such a voting formula. Eventually the system recommended by the Trustram-Eve Commission was a unique combination of

(i) 40 single member First Past The Post (FPTP) constituencies that were gerrymandered to deliver the right ethnic mix of Members of Parliament (MP); and

(ii) The appointment of a maximum of 12 nominated MP by the Governor to correct for ethnic underrepresentation.

To entrench the ethnic dimension (and even other sub divisions) of the nominated members, the power of appointment of the Governor was subject to three additional conditions by the Colonial Administration so as to provide further assurances to the three communities. They were:

(a) the power of nomination was to be so exercised that each of the three main sections of the population was represented in the Legislature in numbers broadly corresponding to its proportion of the population as a whole;

(b) the Governor has to bear in mind that within the three main sections, there might well be important differences of opinion of which he should also take account;

(c) he should feel free to select candidates who had been unsuccessful at the elections if they had received a reasonable amount of support, as well as persons who had not stood as candidates. The ethnic makeup of the 40 constituencies was gerrymandered to ensure that the three major groups would have fair and equitable representation in Parliament, with few districts being very mixed in their composition. Two elections were held under that system in 1959 and in 1963.

20 Three-member constituencies and 8 best loser seats

Dissatisfaction with both the appointment of nominated members by the Governor and with single member constituencies grew at the beginning of the 1960s. It was felt that the rules and practices concerning these nominations could not continue for the purpose of a general election for the introduction of full internal self-government. While a consensus emerged against singlemember constituencies, there was still the necessity to find a suitable alternative to provide broad based communal representation in Parliament. This was deemed essential to ensure inclusivity and to preserve intercommunal harmony.

Interestingly, Professor de Smith, one of the best constitutional minds to advise our country, was extremely far sighted and fully understood the perils of an ethnic-driven system. He was against the inclusion of communities in our Constitution and forcefully objected to the ethnic-based voting formula. He recommended a mixed FPTP/PR (Proportional Representation) sys- tem instead to achieve the objective of a diverse legislature, as desired by the framers of the Constitution. There was also provision for the Governor to nominate a maximum of three members to represent special interests that could not obtain political representation through the electoral process. As the local politicians could not reach agreement on his proposals, we ended up with the Banwell Commission to recommend the electoral formula for the Independence elections.

The Banwell Commission was given some guiding principles as follows:

(i) the system should be based primarily on multi member constituencies;

(ii) voters should be registered on a common roll;

(iii) the system should give the main sections of the population an opportunity of securing fair     representation of their interest, if necessary by the reservation of seats;

(iv) no encouragement should be afforded to the multiplication of small parties;

(v) there should be no provision for the nomination of members to seats in the Legislature;

(vi) provisions should be made for the representation of Rodrigues.

As expected, the main political parties had different views on the most appropriate electoral system for Mauritius, especially between those advocating FPTP formulae and those supporting PR systems.

The Commission reached the conclusion that fair representation of the main communities could be attained without reserved seats. It re- commended a mixed electoral system that was quite unique and which comprised three elements.

 (a) 20 three-member constituencies returned through a FPTP mode in the Island of Mauritius and 1 twomember constituency in Rodrigues ;

 (b) a ‘constant corrective’ of five seats as compensation for underrepresented parties and communities, allocated after the poll and chosen among the best losers. However to avoid a multiplication of parties along communal lines, a threshold of 10 % of the national votes and winning at least one seat out of the 60 were imposed as conditions to be eligible for the fixed correctives;

(c) a ‘variable corrective’ to ensure that a party that polls more than 25 % of votes is guaranteed to secure at least 25 % of the total seats, after taking into account the constant correctives. Thus, a party which polled more than 25 % of the votes would be in a position to ensure that there were no changes in the entrenched provisions of the Constitution without its support.

The recommendations of the variable correctives were strongly contested by many political parties as it was perceived as the introduction of PR through the backdoor. Under considerable pressure, the UK government sent John Stonehouse, Parliamentary Under Secretary of State for the colonies, to attempt to settle the controversies over the Banwell recommendations. Stonehouse disregarded the variable correctives which was the most controversial proposal of Banwell and proposed some amendments with respect to the fixed correctives. The country ended up with:

(i) 62 MP returned from 20 three-member and one two-member constituencies using FPTP; and

(ii) Eight Best Loser (BL) seats to compensate for communal underrepresentation.

Equally the requirements to poll 10 % of national vote and to win at least one constituency seat to be eligible for the Best Loser seats were dropped. And the 8 BL seats were divided into two sets of 4 seats.

Banwell proposed the Best Loser system in a very specific context of rising communal politics and ethnic polarisation in the run up to independence. It was intended as a purely temporary arrangement for three elections so as to facilitate the difficult political transition to the country’s independence.

He stated optimistically that: ‘We hope, however, that it will prove possible for all parties in Mauritius to agree on the ultimate disappearance of such political arrangements for communities’.

In spite of its temporary nature, all 11 elections since 1967 have been conducted with that formula as the political class has been incapable to agree on the ultimate disappearance of such political arrangements for communities.

This is in spite of many judicial admonishments by the Supreme Court since 1991 to cure the defects of our electoral system, frequent embarrassing postponements of a case pending before the Supreme Court, reprimands from the Privy Council that a system based on figures now nearly forty years old makes no sense, chastisements from the UNHRC in 2012 that some aspects of our voting formula are arbitrary and infringe the rights of our citizens, clear recommendations by many international experts to reform the system, proposals by Ministerial Committees, suggestions by White papers and acknowledgement by all parties to change the electoral system. All in vain because of a lack of political will and courage.

In the meantime, the colonial legacy of dividing us into arbitrary ethnic grids and erecting walls of segregation continues to shape Mauritian politics. It is a terrible blow to nation building and to shared citizenship.

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