On a secret ballot in the no confidence vote against President Zuma

Baleka Mbete, the Chairperson of the African National Congress (ANC) – who sometimes also serve as Speaker of the National Assembly (NA) – recently ruled that MPs will not be allowed to vote by secret ballot in the vote of no confidence against President Jacob Zuma. Although the High Court – applying a previous versions of the rules of the NA and misinterpreting those rules – previously declined to order the Speaker to ensure that the vote of no confidence is done through a secret ballot, this does not mean that vote by a secret ballot is not possible.

There are many reasons why real political power in South Africa largely lies with political parties and not with the democratically elected members of the legislature. The electoral system (which strengthens parties vis-à-vis democratic constitutional institutions like Parliament) and the strict party discipline imposed by political parties on their elected MPs are partly to blame for the fact that most politically important decisions are not taken by Parliament (except in a formal sense), but are rather taken by party leaders who were never elected into their political party positions by South Africa’s 20 million voters.

The power of the governing party leadership over its elected MPs in the NA is further strengthened by NA rules 103 and 104, which set out the manner in which voting is usually conducted in the NA. As a general rule, these sections provide for voting to be done in the open, with the vote of every MP made known to the public and (more importantly) to party leaders.

While section 6 in schedule 3 of the Constitution requires the NA to elect a new President via a secret ballot, the Constitution does not require a vote of no confidence to be conducted via a secret ballot.

In 2015 the Western Cape High Court rejected a request by AGANG to order a secret ballot in a no confidence vote against President Jacob Zuma. Unfortunately that judgment (in the case of Tlouamma and Others v Mbethe, Speaker of the National Assembly of the Parliament of the Republic of South Africa and Another) is not model of clarity and logic. But as far as I can tell, the judgment not only held that the court could not order the Speaker to conduct a secret ballot, but also that the Speaker had no discretion to order such a secret ballot.

However, the judgment has now become partly obsolete as the NA has amended its rules since the judgment was handed down, making clear that the Speaker does have the discretion to order a secret ballot. The Speaker has claimed that she does not have a discretion to order a secret ballot. This claim is either deliberately misleading or the result of a lack of intellectual inquisitiveness on the part of the Speaker.

As NA rule 129 is silent on whether voting in a motion of no confidence should be conducted by secret ballot or not, one would assume the ordinary voting procedures prescribed elsewhere in the rules would apply. Specifically, NA rule 103 and 104 would apply to such a vote. Both rules make clear that the Speaker has a discretion to determine the voting procedure to be followed for any vote. Rule 103(1) states that:

At a sitting of the House held in a Chamber where an electronic voting system is in operation, unless the presiding officer directs otherwise [my italics], questions are decided by the utilisation of such system in accordance with a procedure predetermined by the Speaker and directives as announced by the presiding officer.

The electronic voting system records the identity and the vote of every MP, which means this method of voting is not by secret ballot. However, the rule clearly empowers the Speaker to direct that the system not be used. The fact that the Speaker has a discretion to determine a different voting system – including one by secret ballot – is underlined by NA rule 104 which states that”

Where no electronic voting system is in operation, a manual voting system may be used in accordance with a procedure predetermined by the Speaker and directives to be announced by the presiding officer [my italics].

These two rules thus make it clear that the Speaker has a discretion to decide what voting procedure should be followed. She can decide to direct that voting should be conducted by secret ballot, if she so wished. Her claim to the contrary is false.

The UDM recently approached the Constitutional Court about the secret ballot matter and on Tuesday the Court agreed to consider the matter. In as much as a court will be asked to direct that the Speaker has a discretion to order a secret ballot, such a request will surely be successful for the reasons set out above.

When the Speaker chooses not to order a secret ballot this is a decision to exercise her discretion in an overtly political manner in order to protect the President. A claim to the contrary would at best be misleading.

But even if NA rule 103 and 104 did not grant a discretion to the Speaker to order a secret ballot, the members of the NA could change this and arrange for a secret ballot themselves. This is so because MP’s have the power in terms of NA rule 4 to suspend any rule, including a rule that requires an open ballot on any motion. The rule, in part, reads:

(1) Any provision of these rules relating to the business or proceedings at a sitting of the House or a mini-plenary session, or of a committee of the House or any other forum of the House, may be suspended by resolution of the House.

(2) The suspension of any provision must be limited in its operation to the particular purpose and period for which such suspension has been approved.

This means that the MPs could suspend the rule requiring voting to be conducted with the electronic voting system (thus a public vote) for the purpose of dealing with the no confidence vote in President Jacob Zuma. Not only the Speaker, but also MPs as a collective can therefore enforce a secret ballot if they wished to do so.

But if we assume that both the Speaker and the majority of MPs will wish – for political reasons relating to the protection of President Zuma – to avoid a secret ballot during the motion of no confidence motion, a far more difficult legal question arise. The question is this: Can and will the Constitutional Court order the Speaker to exercise her discretion in a particular manner, namely to order that the vote of no confidence in the President be conducted via secret ballot?

While the Constitutional Court has the obligation to enforce the provisions of the Constitution (as well as ordinary legislation) and to ensure that presiding officers adhere to the rules of Parliament, it will rightly be reluctant to interfere in the internal workings of Parliament.

There are several provisions that affirm the power of the houses of Parliament to determine their own procedures. Unless the Constitution or legislation limits this power or unless the Speaker fails to adhere to the rules adopted by Parliament, the Constitutional Court will not interfere with the Speaker’s exercise of her discretion.

For example, in terms of section 57 of the Constitution the NA may: “determine and control its internal arrangements, proceedings and procedures; and make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement”.

It is at best unclear whether any constitutional or legislative provisions directly or indirectly require the NA to conduct a vote of no confidence via a secret ballot.

I suspect there are two possible arguments which could be advanced to try and convince the Constitutional Court to intervene.

First, it could be argued that because section 6 of schedule 3 of the Constitution requires a secret ballot for the election of the President, by necessary implication a secret ballot is also required to fire the President via a vote of no confidence. On its face this is a plausible argument, but I suspect the Constitutional Court will hold – as the Western Cape High Court did in the Tlouamma judgment – that the failure of the drafters of the Constitution to require a secret ballot for the removal of the President was deliberate. If this is correct, this argument will fail.

Second, it could be argued that legislative provisions and the rules of the NA impose a duty on the Speaker to protect MPs from recrimination if they vote in favour of a motion to remove President Jacob Zuma from office. While there is no NA rule to this effect, NA rule 2 states that the “sources of authority” of the NA include not only the Constitution and the NA rules but also the “Powers and Privileges Act and any other applicable legislation”.

This means the Speaker must exercise her discretion with due regard to the provisions of the Powers and Privileges Act. From the perspective of those trying to convince the Constitutional Court that it should order the Speaker to allow a secret ballot during the vote of no confidence, the most promising section of that Act is section 8, which states that:

(1) A person may not by fraud, intimidation, force, insult or threat of any kind, or by the offer or promise of any inducement or benefit of any kind, or by any other improper means:

(a) influence a member in the performance of the member’s functions as a member;

(b) induce a member to be absent from Parliament or a House or committee; or

(c) attempt to compel a member to declare himself or herself in favour of or against anything pending before or proposed or expected to be submitted to Parliament or a House or committee.

You must see where I am going with this argument. If the Speaker has a duty to protect MPs from threats aimed at compelling them to vote against the motion of no confidence, not allowing a secret ballot, so it could be argued, could be in breach of section 8 of the Powers and Privileges Act. One could then argue that the Speaker has a duty to allow a secret ballot in such a highly charged vote in order to give effect to her legal duty to enforce the provisions of the Powers and Privileges Act.

Will such an argument succeed? Given the fact that courts are reluctant to interfere in the internal workings of the NA and given the fact that the vote of no confidence is a decidedly political vote in which party political considerations play an important role (as such a vote demonstrates whether the President retains political support in the body who elected him) I remain sceptical that such an argument will succeed. But it is not beyond the bounds of possibility to imagine that the Constitutional Court would agree with such an argument.

All of this remains speculation. In any event, it is far from clear that individual MPs of the governing party will support a motion of no confidence in President Zuma – even if they are allowed to vote in a secret ballot. After all, in our political system party discipline has a tendency to override common sense or conscience.

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