Parliament's rules committee does not usually meet often. Recently, though, it and its subcommittee have been meeting repeatedly, with intense negotiations taking place. But political parties can't find consensus and the ANC seems too internally divided to finalise its position.
This activity has been taking place before the Constitutional Court's hearing on March 28 to decide on disputed parliamentary issues, including whether a vote of no confidence ought to be held by secret ballot. This is a matter of paramount importance: it could define the way our democracy works.
In its five years in opposition in the KwaZulu-Natal legislature, the ANC argued that its motions of no confidence in the Inkatha Freedom Party speaker and premier be held by secret ballot only. The IFP majority rejected this.
Still, the ANC opposition launched many battles – points of order, procedural challenges, calls for quorum verification and filibustering. This created in KwaZulu-Natal the most vibrant parliamentary democracy in post-liberation South Africa, plus much new parliamentary law and practice.
Now the tables have turned. For two months, in the National Assembly, the ANC has fought the demands of all opposition parties that a motion of no confidence be voted on by secret ballot.
No accountability
In 2001, a commission led by Frederik van Zyl Slabbert and consisting of domestic and international experts (broadly sympathetic to the ANC) was appointed to consider South Africa's electoral system. Its report stated that our electoral system had to be reformed because, although it offers simplicity, fairness and proportionality, it fails abysmally on accountability.
We have a party list system with no primaries, recall or option of expressing preferences. Thus party leaders decide on the list of candidates, the order in which they are listed and, in effect, who is elected once voters vote for their party. There is no real control over parties' internal democracy, including their constitutions and adherence to them.
The Slabbert commission proposed a new system, akin to the one we use for local government elections. The Cabinet tried to suppress the commission's report, however, ordering that it be destroyed – and has, ever since, refused to implement its recommendations. That leaves us with one of the world's worst electoral systems in terms of accountability.
In addition, our Constitution has a unique feature: an MP automatically loses his job if he is expelled from his party. Most parties' constitutions enable their governing bodies to terminate memberships for any reason and the courts have upheld this. Thus most MPs are chosen by party bosses and know they can be fired at any time if they do not follow orders.
The opposition is united in arguing that a secret ballot is constitutionally required. The Constitution requires a secret ballot when Parliament elects the president, which is obviously to protect MPs' freedom of conscience at that crucial time. It is an acknow-ledgment of the pressure otherwise placed on MPs. So why not have a secret ballot when it's a matter of no confidence in the president?
A vote of no confidence requires assessing and questioning constituted authority, so freedom of conscience is even more important than in the election of a president.
Procedures and activities
?The Constitution gives Parliament discretion on procedures and activities, including motions of no confidence. But this discretion is not unlimited: parliamentary rules must promote accountability, transparency and the participation of minority parties. Parliament should adopt rules that ensure the same freedom of conscience in firing or endorsing the president as the Constitution ensures when MPs elect him or her.
During the recent deliberations on these issues, the ANC reversed its position of 10 years ago and argued that transparency requires open, recorded voting. It is wrong. In this case, the need for accountability trumps the need for transparency. In our subservient, patronage-based and hierarchical political system, there can be no real presidential accountability without a secret ballot.
The Cape High Court held that Parliament's rules must be supplemented to regulate the vote of no confidence in a way that fosters democracy and the rights of minority parties to bring such a motion. Parliament could find agreement on how to fix its rules and the ANC, with its majority, could adopt it. But the ANC seems internally divided on this, so it is left to the Constitutional Court to resolve.
The secret ballot is a vital feature to be fixed. It affects all minorities, including a minority of dissident ANC MPs – even, perhaps, a majority that might emerge if ANC MPs had freedom of conscience.
By denying this freedom, the ANC shows how weak its grip on power really is. It fears the real feelings of its MPs. A secret ballot would unleash their potential and that of our democracy.
Mario GR Oriani-Ambrosini is an MP and the IFP's spokesperson on justice and parliamentary rules.