The ball is now squarely in Baleka’s court

Whether a parliamentary motion of no confidence in President Jacob Zuma should be decided by secret ballot is a “judgment call” to be made by the speaker of the National Assembly, the Constitutional Court said this week.

But the speaker could not make that call “arbitrarily or whimsically”, said the court, and gave her some pointed guidelines. By so doing, the country’s highest court has both empowered and constrained the speaker, Baleka Mbete.

If Mbete does not carefully weigh up her decision, she risks being hauled before a court again.

This means the battle over a secret ballot is far from over. But for now, it shifts back to Parliament.

First prize for the United Democratic Movement (UDM) – which took this case to court – would have been if the court had said that a secret ballot was not only permitted, it was required.

But the UDM failed to persuade the court that the Constitution demanded a secret ballot for motions of no confidence in the president.

In a unanimous judgment, penned by Chief Justice Mogoeng Mogoeng, the court said the Constitution was silent on whether there should be a secret ballot.

After examining all the other voting procedures set out in the Constitution, the court said: “The Constitution could have provided for a vote by a secret ballot or an open ballot. It did neither.”

Instead, it left it to the National Assembly to decide. And it needed to be decided on a case-by-case basis, said the court.

Second prize for the opposition parties would have been for the court to order that this particular vote – originally scheduled for April 18 – had to be held by secret ballot.

But the court also refused this, saying it would “trench” on the constitutionally enshrined separation of powers between the legislative, executive and judicial arms of the state. Also, now that the highest court has clarified that the speaker has the power to order a secret ballot, the court “cannot assume she will not act in line with the legal position”.

“The speaker has made it abundantly clear that she is not averse to a motion of no confidence being decided upon by a secret ballot. She only lamented … that she lacked the power to authorise voting by secret ballot,” said Mogoeng.

The president and speaker did not get their first prize, either – an order that secret ballots for no-confidence motions were prohibited by the Constitution.

This had been Mbete’s position when the case began, but during the hearing her counsel conceded that, the Constitution did, indeed, grant her such discretion.

The court recognised that the speaker is, like every other MP, also a member of a political party and has to “balance party interests with those of the people”.

But proper oversight over the executive “vitally depends on the speaker’s proper exercise of this enormous responsibility”, said the court.

The power to decide “is neither for the benefit of the speaker nor his or her party”, said the court.

Rather, it must be exercised in a way that would achieve its purpose, which is to enhance the accountability of the president and Cabinet.

The court outlined a number of factors that Mbete should consider when she makes her decision. One of these was to allow MPs the ability to vote with their conscience and guard against the “prejudicial consequences” that could follow if their votes were to become known.

Although South Africa’s demo-cracy was primarily based on a party system, MPs were also required to take an oath of office as individuals, said the judgment.

“Nowhere does the supreme law provide for them [MPs] to swear allegiance to their political parties, important players though they are in our constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to … serve the people … must prevail,” said Mogoeng.

On the other hand, there were also the fundamental constitutional values of transparency and openness to consider, said Mogoeng.

“The electorate is, at times, entitled to know how their representatives carry out even some of their most sensitive obligations, such as passing a motion of no confidence.”

Sometimes transparency would demand MPs to be courageous and bold in advancing the best interests of those they represented – “no matter the consequences, including the risk of dismissal”, said the chief justice.

Another factor that should not be naively discounted was “crass dishonesty, in the form of bribe-taking”, he said. If a secret ballot were to allow that to happen, it could betray the people’s best interests and the very purpose of the secret

The speaker’s decision must ensure that the motion is “not a fear- or money-inspired sham but a genuine motion for the effective enforcement of accountability”, said the judgment.

The power vesting in the speaker – like the powers given to MPs, government officials and even judges – belongs to the people, it said.

“Amandla awethu, mannda ndiashu, maatla ke a rona or matimba ya hina … are much more than mere excitement-generating slogans,” said Mogoeng.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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