ConCourt considers Secret Ballot: When politics and the law collide

Throughout the day, the judges of the Constitutional Court asked counsel for the various parties before them about the basis on which the court should be involved and why the secret ballot was necessary. The judges were clearly concerned and mindful of the separation of powers doctrine and the question of judicial overreach. The only thing the court could do, Chief Justice Mogoeng Mogoeng said, was look at the law and interpret it.

At the end of the day’s arguments, Justice Mogoeng thanked the advocates for their “enlightenment”. “You have no idea how challenging it was to conceptualise the issues,” he said.

Apart from the judges being cautious of another matter relating to Zuma, particularly as his supporters in KwaZulu-Natal were staging a protest against judicial overreach, they also wanted to be careful not to encroach on the functions of Parliament or prescribe to the Speaker how to act.

While the drafters of the Constitution spelt out that the president should be elected by secret ballot, they did not stipulate as much in the section on the removal of the president through a motion of no confidence. Mbete refused the UDM’s request for a motion of no confidence through secret ballot. She stated in a letter to the UDM’s attorney that she had no authority in law or through the rules of Parliament to grant this.

Lawyers initially fumbled on the question of why the court should intervene and what the National Assembly rules allowed for. Dali Mpofu, representing the UDM, said MPs were entitled to vote according to conscience and should be protected because of the risks they could face if they did so. He said the separation of powers was not at issue and there needed to be an interpretation of the instruments for holding the president accountable.

Tembeka Ngcukaitobi, arguing on behalf of the Economic Freedom Fighters (EFF), said the motion of no confidence could not take place effectively unless it was conducted through a secret ballot.

“The most practical way of holding the executive accountable is a secret ballot,” Ngcukaitobi said. He said the Constitutional Court must only deal with current motion and not secret ballots in Parliament generally.

But the advocate for the Inkatha Freedom Party (IFP), Anton Katz, said every motion of no confidence should be decided by secret ballot in principle. He said IFP MPs had consistently requested that motions be decided by secret ballot and were denied this.

Maruma Moerane, representing the Speaker, said the National Assembly had considered and decided against a secret ballot. He said the Constitution left the determination of voting procedures to the National Assembly.

“If it wanted a secret ballot, it would say so,” Moerane said. Mbete was not prepared to make an assumption that people would vote differently in open vote and in a secret ballot, he said.

But Moerane conceded eventually that Mbete had the discretion to allow a secret ballot, through the reading of section 103 and 104 of the rules of the National Assembly.

While Mbete did not oppose the application, Zuma did.

Ishmael Semenya, representing Zuma, argued that if there were any risks against MPs, this should be referred to Parliament’s rules committee together with the evidence so that that the rules could be amended. He said for the UDM application for a secret ballot to succeed, the Constitutional Court had to determine that the executive could not be held to account through an open vote.

It was interesting that the ANC did not participate in the case, although their MPs were the subject of the discussion, particularly the intimidation and possible risks facing them. Mpofu said that the risk to MPs was more than the daunting prospect of challenging the president. He said because ministers and deputy ministers also had to resign if a motion of no confidence was passed, it was not just the president that MPs were voting against but up to 70 of their colleagues.

While the judges’ line of questioning eventually led the senior counsel to come to some consensus that the secret ballot was permissible and the Speaker had the discretion to allow it, the matter remains complex. This is yet another matter before the courts where the President of the Republic is a respondent. The issues in this case are not about whether he is a fit and proper leader but it is difficult to see the arguments outside the context of Zuma being a disastrous president who has dragged the country to the brink.

If the Constitutional Court could hear arguments from lay people, in this case the opposition party leaders, the rationale for the secret ballot would be very different. It would be about the track record of Mbete in bulldozing the opposition, the frustrations they face in Parliament by being stonewalled through the ANC’s majority, and how Zuma has made a mockery of the accountability mechanisms. If this was the court of political opinion, they could argue why the motion of no confidence against the president needed to succeed.

But the case is not about Zuma or the merits of the motion of no confidence. It is only about the law, the rules of the National Assembly and the interpretation of these with regard to the secret ballot.

There is also another factor in this case. While there might be ANC MPs willing to vote according to conscience, the majority of the caucus will not do so – even though they might be opposed to Zuma’s continued leadership of the country and the ANC. Some of them might be influenced by the party line, as pronounced by the ANC national working committee. But others would want the ANC to decide on their leader’s future, not the opposition to drive the process.

But is the ANC capable of acting against Zuma? The party will have to answer that question at the end of this month when the national executive committee meets. If the party fails to deal with Zuma’s appalling leadership and fails to hold him to account for his Cabinet reshuffle, it might make it easier for ANC MPs to vote according to conscience.

For now, the question is how the judges of the Constitutional Court will continue to protect and defend the rule of law through their interpretation of the application for a secret ballot. If Monday’s riveting arguments are anything to go by, the answers are pretty obvious regarding the Speaker’s discretion.

But the Constitutional Court has surprised us in the past with their astute interventions in this period of turmoil. Perhaps they will do so again. DM

Photo: President Jacob Zuma takes the oath of office administered by Chief Justice Mogoeng Mogoeng, Saturday May 24, 2014. Elmond Jiyane, GCIS Photo Studio