ConCourt should find for the UDM

Hot seat: The UDM is asking the Constitutional Court to decide whether Baleka Mbete is right to say that she cannot authorise a secret ballot for a vote of no confidence against Jacob Zuma. (David Harrison)

Hot seat: The UDM is asking the Constitutional Court to decide whether Baleka Mbete is right to say that she cannot authorise a secret ballot for a vote of no confidence against Jacob Zuma. (David Harrison)

I hope the Constitutional Court will hear the United Democratic Movement’s (UDM) case about whether the speaker of Parliament has, at the very least, discretion when it comes to deciding on a secret ballot for a vote of no confidence in the president.

The first legal hurdle is to persuade the court that the matter is urgent and for the UDM to be granted direct access to the court. We seldom acknowledge the impact of the political climate on the court because our judges generally do a good job of making it seem as if they are always strictly guided by the facts and the legal issues before them.

Judges are human. They read. They are aware of social and political dynamics. That is, at any rate, how it should be. One jurisprudential effect, of course, is that deeply held convictions about nonlegal issues can impinge on the analysis of sources of law including the Constitution.

The stated and publicised reasons for a judge’s or a court’s decision may be wholly legal but it does not follow that the operating motives were wholly or at all legal. When choosing between two acceptable legal interpretations of a text, a judge could be persuaded, in fact, by non-legal considerations even if they are crafty enough to keep these out of the stated reasons for their decisions.

The UDM case lands in a deeply politicised context. Some judges may fear reprisal if they are seen to be overstepping the boundaries that separate the different branches of government. In order to protect the judiciary’s reputation, it might be tempting to find legal justification for either not hearing the UDM matter directly or not to deem it urgent.

That, in my view, would be legally erroneous apart from having bad political consequences. It is in the public interest for the Constitutional Court to settle an urgent constitutional question about how MPs can and cannot go about holding the executive to account.

The court does not have exclusive jurisdiction but a full Bench of the high court already decided that there is no legal requirement for a no confidence vote to be decided by secret ballot. It would be a waste of time to ask the UDM to seek relief elsewhere when the case is a direct challenge to what it views to have been a mistaken decision by the Western Cape division of the high court. Braamfontein must hear this case. It is, in effect, an appeal of the existing decision in the 2015 Tlouamma case.

The court must not play politics. It must not fear critics who have a priori criticism ready that it is overreaching in its role. The court is genuinely being asked to settle a critical constitutional question that it alone must settle with haste. It must ignore the political ramifications and focus squarely on the nexus legal issues.

At any rate, the UDM introduces new facts and legal arguments that were absent in the Tlouamma case. That too justifies Braamfontein hearing the matter.

For example, the UDM avers, with evidence, that MPs are experiencing intimidation and threats that undermine their constitutional oath to hold the government accountable but for a secret ballot. That was not a premise cited in the Tlouamma case.

Further, the UDM argues that, at the very least, the rules of the National Assembly gives the speaker of Parliament a discretion on the question of whether to use a secret ballot. Tlouamma did not rely specifically on legal argument that was anchored in a textual analysis of the rules of the National Assembly. That case was on the basis of general arguments about our overall democratic system.

It would be irresponsible for the Constitutional Court not to recognise these factual and legal differences between this case and what was decided in Tlouamma. These fresh arguments demand immediate and full ventilation. In Tlouamma, for example, the court took the view that it cannot impose rules on the National Assembly for how to conduct its affairs. In saying so it relied, in turn, on a constitutional case — the Mazibuko case — that expressed a similar caution.

The case brought by the UDM is very different. It is not arguing that the court should impose rules on the National Assembly. It is asking the court to decide whether Baleka Mbete is right to say that the Constitution forbids her from exercising any discretion when it comes to the option of a secret ballot.

This is where politics could be pressuring. A judge who is scared of answering the latter question, for fear of paving the way for a secret ballot that could end Jacob Zuma’s career, might deliberately pretend that Mazibuko and Tlouamma have settled the issue that the UDM is bringing before the court.

This is where active citizens must read cases, think about them and be prepared to hold the court responsible for poor legal adjudication. The law is not rocket science. We can engage it.

Lawyers can disagree about whether Mbete has discretion and whether her discretion is exercised rationally. Lawyers cannot deny that Mbete’s claim that she lacks discretion requires the Constitutional Court to hear the UDM matter urgently. 

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