No Confidence Vote #8: Will MPs be able to vote by Secret Ballot?

In February 2015 the Western Cape High Court dismissed an application by AgangSA to postpone a March 2, 2015 vote on a Motion of No Confidence in President Jacob Zuma. In that instance Agang had asked for Speaker Baleka Mbete not to preside over the vote due to her perceived partiality as well as seeking a secret ballot on that motion.

Judge Ashley Binns-Ward was careful to highlight the separation of powers and ruled that the court could not order how the National Assembly should be run as this would be unconstitutional. While the ANC has argued that this ruling confirms that a secret ballot cannot be used, the DA has in turn argued that all it does is indicate that while the court cannot interfere, the National Assembly can decide for itself, by a two-thirds majority, whether or not to vote this time round by secret ballot.

In January 2015, EFF Chief Whip, Floyd Shivambu, argued that while Members of Parliament “who have been elected through a secret ballot carry the right and obligation to elect the President, Speaker and Deputy Speaker through a secret ballot, the decisions they take after these elections are not by secret ballot.”

The party said that South Africa’s parliamentary system and rules prescribed that Members of Parliament should cast votes for or against proposed decisions, budget votes, reports, and motions of no confidence through an open vote, but that the current system did not provide for secret votes on key decisions.

A secret ballot, argued the EFF, did not undermine the electorate but “is meant to empower them in between elections that they can influence decisions”.

“Both liberal and left-wing politics recognise the sacrosanct nature of secret ballot in democratic decision making processes, and this is what should be upheld by the South African Parliament. That the electorate chose a certain political party with its candidates in general elections does not mean that the electorate and the political party representatives in a legislature agree with each and every decision the political party takes prior to the next general elections.”

This “undermines the principle and spirit of democracy” argued the EFF, which is essentially understood as providing “an equal, free, and fair opportunity to canvass and be canvassed for a particular outcome and when majority of those canvassed take a particular posture, the majority outcomes are accepted”.

MPs, who have taken an oath of office, had a duty to uphold and maintain the constitution of the country, argued the EFF.

On Sunday, after she had flown in from Bangladesh and replying to questions after a media conference announcing that she would be “consulting” this week with regard to several requests for a Motion of No-Confidence debate and vote on President Zuma after his rogue cabinet reshuffle last week, Mbete maintained that Parliament’s rules did not currently make provision for a secret ballot. She added that this might be allowed at “some future date” – revealing her thoughts, for now, on the matter.

During the crucial November 2016 debate on a Motion of No Confidence, tabled by now axed Minister of Tourism, Derek Hanekom, and which came in the slipstream of former Public Protector Thuli Madonsela’s State of Capture Report, the EFF’s Floyd Shivambu again proposed that the vote be conducted by secret ballot, a proposal that was overruled by deputy speaker Lechesa Tsenoli.

Writing in the Daily Maverick, constitutional law specialist Loammi Wolf said the rationale behind a no-confidence vote was that since MPs elected the leader of government and in so doing provided him or her with a mandate to govern, they may also withdraw the mandate by a simple majority vote. Wolf is of the opinion that in terms of Section 57 of the Constitution, Parliament is free to decide that a no-confidence ballot “in a specific instance” should be in secret “to protect individual members from censure”.

On Sunday Mbete announced that she would “consult” with ANC Chief Whip Jackson Mtembu as well as the ANC’s head of government, Deputy President Cyril Rampahosa, with regard to the no-confidence vote.

There is, at this crucial moment, no guarantee that the divided ANC caucus, led by Mthembu who has publicly announced his support of Pravin Gordhan, will be bound by any loyalty to President Jacob Zuma. And while Mthembu has been vocal on social media, he would not be drawn on Sunday when questioned on the issue after a media briefing on the ANC’s policy discussion document on communications.

As the shockwaves of Zuma’s late-night Cabinet reshuffle on Thursday began to reverberate though South African society, a vote against the motion will most certainly expose the ANC as valuing self-interest above the interests of the country and the electorate that has successively entrusted the party to lead.

For the motion to succeed by a two-thirds majority, 116 ANC MPS need to vote in favour of the Motion of No Confidence along with opposition parties who have indicated they will support the DA in tabling the motion.

Lawson Naidoo, executive director of CASAC and a member of the steering committee of the Save South Africa campaign, is of the opinion that a secret ballot on the Motion of No Confidence is possible and that is is up to MPs themselves to decide on this.

“Currently the National Assembly Rules do not provide for a secret ballot for a Motion of No Confidence. However, section 57 [of the Constitution] says NA may decide how to conduct its business. So National Assembly could decide that this motion will be by secret ballot. Parliament can determine how its business is conducted,” Naidoo told Daily Maverick. DM

Photo: Speaker Baleka Mbete addressed media at OR Tambo international Airport on Sunday after opposition parties launched a motion of no confidence vote application against the president. (Greg Nicolson)