On August 8, the National Assembly will finally debate the latest motion of no confidence in President Jacob Zuma. But before this date the speaker, Baleka Mbete, will have to decide whether the voting will be by secret ballot. In the light of the recent judgment of the Constitutional Court, the question arises as to the constraints under which she must operate to make a lawful decision.
The unanimous judgment, penned by Chief Justice Mogoeng Mogoeng, contains a set of key considerations that the speaker must take into account. It must be remembered that the easiest part of the decision of the Constitutional Court concerned the clear existence of a discretionary power of the speaker to decide the nature of the ballot.
In the exercise of this discretion, she is obliged to take account of the purpose that the Constitution gives to the idea of a motion of no confidence: “It is one of the most effective accountability or consequence-enforcement tools designed to continuously remind the president and Cabinet of what could happen should regular mechanisms prove or appear to be ineffective. This measure would ordinarily be resorted to when the people’s representatives have, in a manner of speaking, virtually given up on the president or Cabinet. It constitutes one of the severest political consequences imaginable — a sword that hangs over the head of the president to force him or her to always do the right thing. But, that threat will remain virtually inconsequential in the absence of an effective operationalising mechanism to give it the fatal bite, whenever necessary.”
It follows that the decision as to the form that voting will take is key to ensuring a constitutionally compliant operationalising mechanism. The mechanism must ensure that the members of the National Assembly are able to perform their constitutional duty, for the “motion of no confidence is fundamentally about guaranteeing or reinforcing the effectiveness of existing mechanisms, in-between the general elections, by allowing members of Parliament as representatives of the people to express and act firmly on their dissatisfaction with the executive’s performance”.
The next issue is the most fundamental. The exercise of the vote by a member of the assembly is not dependent on the approach adopted by the caucus of the political party of the member. This may be the most important passage of the judgment by the chief justice: “It is individual members who really have to vote … provisions are couched in the language that recognises the possibility of majorities supporting the removal of the president and the speaker. Conceptually, those majorities could only be possible if members of the ruling party are also at liberty to vote in a way that does not always have to be predetermined by their parties. And this, of course, assumes that the ruling party would generally be opposed to the removal of their own.”
To the extent that there could be any doubt about the secondary role that allegiance to the wishes of the political party might play, the chief justice removes it: “Central to the freedom ‘to follow the dictates of personal conscience’ is the oath of office. Members are required to swear or affirm faithfulness to the republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them 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 in effect serve the people and do only what is in their best interests must prevail. This is so not only because they were elected through their parties to represent the people, but also to enable the people to govern through them, in terms of the Constitution.”
This means that the various statements from the ruling party, in particular those of chief whip Jackson Mthembu and secretary general Gwede Mantashe, concerning the obligation of ANC members of the National Assembly to vote as one to defeat the motion, are incompatible with the law as set out by the Constitutional Court. Furthermore it is doubtful whether voting against the wishes of the caucus could constitute a ground for dismissal from the ANC.
The final consideration that the speaker is obliged to consider is whether an open ballot might compromise the ability of members to vote in terms of their conscience. She will need to take account of the following: “The purpose of that motion is also to enhance the enforcement of accountability by allowing members of Parliament as representatives of the people to express and act firmly on their dissatisfaction about the executive’s performance in-between general elections. It is fundamentally for the advancement of good governance through quality service delivery, accountability, the strengthening of our democracy and the realisation of the aspirations of the people of South Africa.”
It is here that the statements of, for example, Makhosi Khoza, an ANC MP who has spoken of her fears for her safety and the need for her to exercise her vote without intimidation, will need to be carefully assessed by the speaker. It is clear from the judgment that members must feel free to vote according to how they consider the nature of their overriding constitutional obligations.
In the light of all of this, one is entitled to wonder whether the role of the court has yet ended in this saga.