The term floor-crossing can be used in two different ways.
- Sometimes “floor-crossing” denotes the singular event of voting with another party on one particular and special question. In a few countries, the Members of Parliament vote through their seating position and are allowed to change their seat for each vote, particularly in decisions without required party discipline.
- The term may also describe the process when one Member of Parliament or Council ultimately leaves her political party in order to join another party.
The latter of the definitions is used in this case-study.
In South Africa, the Constitution used to penalize the second type of floor-crossing in the Anti-Defection-Clause (Schedule 2, Clause 23 A). The article stipulates that floor-crossers would lose their seat in parliament if they left the political party on whose list they initially gained their seat. A complementary regulation in the 1996 Constitution allows the adjustment of this article if needed. These changes can be made through simple legislation without the necessity of a two-thirds majority in parliament.
The sanctioning of floor-crossing is said to have had some major advantages in particular for the newly established democracy in South Africa (Myburgh 2003).
The prohibition of floor-crossing not only implied that votes for a party were accurately translated into seats in parliament, but also that parties had no chance to gain more seats except in the general elections. After having experienced the suppressive governance of the Apartheid system, it seemed to be very important to tame possible expansionism of the ruling party.
On the other hand, weaknesses of the prohibition were often mentioned (Myburgh 2003): the system had strengthened the party organisations and their power to select the representatives for the general public through their internal candidate selection processes. A seat in parliament was closely connected to membership in a particular political party, which implied that a Member of Parliament had no other option than to be strongly committed to the party line if he or she hoped to keep the seat.
In 2001, problems within the opposition alliance led to discussions about a change in the law. The so-called DA problem (from the Democratic Alliance) raised the discussion about the regulation of floor-crossing in South Africa and led to the evolution of a new legislation (see Knirsch/Schwab 2002).
The DA (Democratic Alliance) was an alliance between the Democratic Party (DP), the New National Party (NNP), and the Federal Alliance (FA) until November 2001, when the NNP left the alliance. Since the DA had gone to the polls at the local government elections in 2000 with only one common party alliance list, no distinction could be made between the representatives of the different political parties. Since the law stipulated that Members of Parliament could only keep their seats if they still represented the list on which they had been elected, they would technically lose their seats. The parties saw two possible solutions: either the elected representatives could be allowed to decide by themselves to which party they wanted to belong in the future (through floor-crossing), or by-elections could be held to fill the vacant seats (for more information about by-elections see section 7.5 'By-Elections').
Those representatives who were members of the NNP but campaigned on behalf of the DA, wished to return to the NNP in order to form a new alliance between the ANC and the NNP. Therefore, a new law that could modify the Anti-Defection-Clause of the Constitution and allow the floor-crossing of the elected representatives was highly desired. The bill that was presented in November 2001 still sanctioned floor-crossing practices but opened up the opportunity for the Members of Parliament to cross the floor without losing their seats within a two-week time period. The President of South Africa could now in consultation with the party leaders and the province premiers stipulate the time period for floor-crossing.
The new legislation was passed and now provides the opportunity for Members of Parliaments to cross the floor on two occasions in a five-year-term without losing their seats. The actual regulation of floor-crossing allows defection only when a ten-percent threshold is exceeded. A minimum of ten percent of the representatives of one party has to be willing to defect. This was inserted in order to prevent political opportunism.
Technically, floor-crossing now works like this: those who intend to cross the floor have to inform the Independent Electoral Commission (IEC). It is in the IEC’s mandate to decide within which stipulated time period the floor-crossing may take place. The whole decision-making process is kept secret in order to avoid manipulation or interference from other politicians.
The results of the first floor-crossing period showed that around seven percent of the elected representatives in local, provincial, or central government made use of this possibility.
Scholars sometimes stress that the current legislation has conserved the disadvantages of the former system while abolishing the advantages for democratic consolidation in South Africa: through the two-week period of floor-crossing in March 2003, the ruling party, ANC, indeed gained several new seats and obtained a two-thirds-majority. The ANC had failed this broad voter support in the general elections in 1999 (see Myburgh 2003).
Also, in the provinces, the ANC gained more power through the floor-crossing-legislation: the party made it to an absolute majority in several provincial parliaments. Interestingly, these cases have proven the argument right that usually the largest party in parliament is favoured by floor-crossing practices. As long as the majority of the ANC seems to be wide and stable, the party will have a set of new seats from defectors from smaller parties every mandate period.
The threshold stipulation of the new law also has consequences favouring the largest party in parliament: It is much easier to fulfil the ten percent-requirement to defect from a small opposition party (a single Member of Parliament could then be enough) than from a bigger party.
Likewise, Members of Parliament will not dare to defect from a big to a smaller party. Smaller parties are in general less sure about how many seats they can win in the next elections. Therefore the individual Member of Parliament cannot rely on a seat in parliament for himself/herself for a minor party. Members of larger parties can feel more confident in gaining a seat again in the next term.
Furthermore, the new floor-crossing-system may disturb the accurate South African -Proportional Representation System.
The overarching power and majority of a major party may have dangerous consequences for the democratic processes in a newly established democracy or a country in transition: i.e. the clear separation of powers is threatened. The parliament as the legislative power may not be able to control the government anymore due to this huge identity of members of government and members of parliament and likewise a rather weak and fragmented opposition.
