As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The Speaker of the National Assembly (NA), Baleka Mbete, will soon have to decide whether the vote of no confidence in President Jacob Zuma is to be conducted through a secret ballot or an open ballot. As the Constitutional Court noted “[t]he Speaker has made it abundantly clear that she is not averse to a motion of no confidence in the President being decided upon by a secret ballot”. But she may have been lying to the court or she may, in the meantime, have changed her mind about granting a secret ballot. Whatever she decides, the decision will be controversial. Which raises the question: what are the legal considerations she has to take into account to make a constitutionally valid decision?
Many South Africans avoid engaging in a detailed argument about the substantive issues raised by a specific case. Instead many (but, thankfully, not all) South Africans indulge in endless rounds of “whataboutery”.
For example: you say, it is wrong for the Guptas to have captured President Zuma and the state and to have laundered billions of Rand to Dubai. They respond: but what about Brett Kebble/PW Botha/Sarie Marais/Absa Bank? Or you say: the Constitution requires the state and private institutions to institute affirmative action measures to advance racial transformation. They respond: but what about “reverse racism”/Tokyo Sexwale’s children being rich/my father worked hard/the fact that I suffered as a white child because we did not have a swimming pool at home?
As far as the question of a secret ballot is concerned, expect lots of misguided “whataboutery” from uninformed members of the public (as well as from a few Twitter lawyers). It will be misguided because whether the Speaker in the NA, Provincial Legislatures (PL), or Municipal Councils (MC) should grant a secret ballot in a vote of no confidence will depend on the facts of the particular case. It would therefore always be misguided to complain about a decision of a specific Speaker by comparing it to a decision taken by another Speaker from another party in another chamber.
When deciding on whether to grant a secret ballot for a vote of no confidence, facts and the applicable legal rules matter. Here is why.
In United Democratic Movement v Speaker of the National Assembly and Others the Constitutional Court (per Mogoeng CJ) held that the Constitution neither prohibits nor mandates a secret ballot for a vote of no confidence in the President, Premier, or Mayor. Both possibilities of an open or secret ballot are seemingly constitutionally permissible (depending on the facts of the particular case).
Otherwise, if Members always had to vote openly and in obedience to enforceable party instructions, provision would not have been made for a secret ballot when the President, Speaker, Chairperson of the National Council of Provinces and their Deputies are elected.
The following factors must be taken into account when deciding on whether to grant an open or a secret ballot.
The first question to ask is whether the rules of the relevant chamber permits a secret ballot or not. As rules for different chambers differ, some Speakers would be prevented from granting a secret ballot for a vote of no confidence because this would not be permitted by the rules of the provincial legislature or the municipal council.
This is not the case for the NA. The Constitutional Court ruled that the rules of the NA do grant the Speaker the discretion to order a secret ballot. But this is not the end of the matter.
The second question to ask is this: why is the vote of no confidence being instituted? If the vote of no confidence is being instituted with the stated aim to hold the President, Premier or Mayor and his or her cabinet or executive council accountable for the use (or misuse) of State power and the resources entrusted to them, it would provide strong support for the Speaker to grant a secret ballot.
When all the regular checks and balances seem to be ineffective or a serious accountability breach is thought to have occurred, then the citizens’ best interests could at times demand a resort to the ultimate accountability-ensuring mechanisms. Those measures range from being voted out of office by the electorate to removal by Parliament through a motion of no confidence or impeachment. These are crucial accountability-enhancing instruments that forever remind the President and Cabinet of the worst repercussions that could be visited upon them, for a perceived or actual mismanagement of the people’s best interests.
With reference to holding President Zuma and his cabinet accountable through a vote of no confidence, the Court continued:
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.
Whether one agrees with them or not, in the current case it is abundantly clear that opposition parties believe the only effective way that remains open to the NA to hold President Zuma accountable, is through the adoption of a vote of no confidence. This requirement would therefore be met for the granting of a secret ballot.
The situation would be different if a vote of no confidence is being instituted not to hold the President accountable, but to change the party of government. For, example, if a coalition of parties govern a municipality and opposition parties wish to use a vote of no confidence to try and get rid of the mayor and have their own candidate elected as mayor (perhaps by bribing one or two opposition councillors – more about that later) the Speaker would normally have to order an open ballot to protect the system of government.
Third, the Speaker must ask whether it would become more difficult or even impossible for MPs to fulfil their constitutional obligation to hold the President and his or her executive accountable if she does not grant a secret ballot. Although MPs are elected as members of their political parties and have a responsibility to their parties “an individual member remains free to follow the dictates of personal conscience”.
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. The requirement that their names be submitted to the Electoral Commission before the elections is crucial. The people vote for a particular party knowing in advance which candidates are on that party’s list and whether they can trust them.
Political parties therefore do not have an absolute right to control their MPs and the decisions they make. As the Constitutional Court noted, if the will of political parties were to always prevail, the Constitution would probably have required political parties to determine which way they want to vote on issues and through their Chief Whips signify support or opposition by submitting the list of Members who would be present when voting takes place.
Because it is individual MPs 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 from office. 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.
But this may be difficult for MPs to do if the ballot is not secret.
Member of Parliament could be exposed to a range of reasonably foreseeable prejudicial consequences when called upon to pronounce through a vote on the President’s accountability or continued suitability for the highest office. But of course that potential risk would also depend on the motivation for the motion of no confidence. Is it on grounds that impugn competence, faithfulness to the Republic or commitment to upholding constitutional obligations or on some fairly innocuous or less divisive or less sensitive grounds?
This means that where MPs have been subjected to death threats or threats of disciplinary action because they had announced that they would uphold constitutional values and choose the Constitution above party loyalty (as has happened to some MPs in the present debate about the vote of no confidence against President Zuma), the Speaker would normally be compelled to order a secret ballot to protect MPs and to allow them to vote according to their conscience.
But there is a fourth factor that might pull the Speaker in the opposite direction. The Speaker must take into account that openness is one of our foundational values. Normally, the electorate would be entitled to know how their representatives carry out even some of their most sensitive obligations, such as passing a motion of no confidence.
So unless there is evidence that MPs will not be able to act in accordance with their conscience to hold the President and the executive accountable – because of death threats, threats from the party to discipline or even expel them from the party, or evidence of other extreme pressure – the Speaker would normally order an open ballot.
Fifth, the Speaker must also consider whether there is evidence that allowing a secret ballot will lead to “[c]rass dishonesty, in the form of bribe-taking or other illegitimate methods of gaining undeserved majorities” by MPs as this will have adverse or injurious consequences for the constitutional democracy.
Anybody, including Members of Parliament or of the Judiciary anywhere in the world, could potentially be “bought”. When that happens in a motion of no confidence, the outcome could betray the people’s best interests. This possibility must not be lightly or naively taken out of the equation as a necessarily far removed and negligible possibility when the stakes are too high. For, when money or oiled hands determine the voting outcome, particularly in a matter of such monumental importance, then no conscience or oath finds expression.
So, where the balance of power in a chamber is evenly poised (as is currently the case in many municipal councils) and where there is evidence that one or two members of a chamber may be bribed to vote with the opposition (not to hold the head of the executive accountable, but to grab power) then the Speaker would normally have to order an open ballot.
The voting process should never be a “fear or money-inspired sham”, but should always be “a genuine motion for the effective enforcement of accountability”. There must always be a proper and rational basis for whatever choice the Speaker makes in the exercise of the constitutional power to determine the voting procedure.
The power to decide whether a motion of no confidence is to be resolved through an open or secret ballot cannot be used illegitimately or in a manner that has no regard for the surrounding circumstances that ought to inform its exercise. It is neither for the benefit of the Speaker nor his or her party. This power must be exercised to achieve the purpose of a motion of no confidence which is primarily about guaranteeing the effectiveness of regular mechanisms.
From the above it must be clear that it will be easy for the Speaker to justify the granting of a secret ballot for the vote of no confidence in President Jacob Zuma. It would be far more difficult for Speaker Mbete to convince a court that granting an open ballot would be rational and hence constitutionally valid.
Of course, given how strong party loyalty is in South Africa and given how reluctant MPs are to place their loyalty to the Constitution above their loyalty to their party, many of us are rather sceptical that it would make much of a difference to the outcome of the vote of no confidence whether the Speaker grants a secret or an open ballot. We will know next week whether this cynicism about MPs is warranted.
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