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.
Any half decent lawyer would not have been surprised that the Constitutional Court ruled earlier this week that the Speaker of the National Assembly (NA) was mistaken when she claimed she did not have the power to order a secret ballot in a vote of no confidence against President Jacob Zuma. It is also not surprising that the Court – demonstrating a slightly better understanding of the separation of powers doctrine than the Public Protector – declined to order the Speaker to conduct the vote of no confidence via secret ballot. But the judgment does contain unexpectedly strong language about the need for Parliament (and especially the NA) to hold the Executive (headed by President Zuma) accountable.
On paper, the National Assembly (NA) is the most powerful branch of the state. While judges interpret and apply legislation and the provisions of the Constitution, the NA is the body (along with the National Council of Provinces) tasked with passing legislation and amending the Constitution. The NA also elects the President, and can fire the President and the entire cabinet for any reason it deems fit. It is also constitutionally mandated to hold the President and the rest of the cabinet accountable and to play an oversight role over the executive and other constitutional bodies.
However, as I have written before, in practice the President and his or her cabinet seemingly have the upper hand. Because of the dominant role that political parties play in a modern constitutional democracy like ours (and because of the political culture within political parties with its emphasis on strict party discipline), the NA does not always hold the members of the executive accountable in the manner envisaged by the Constitution.
The Constitutional Court judgment in United Democratic Movement v Speaker of the National Assembly and Others (the so-called “secret ballot” judgment) contains powerful language to school the members of the NA about their constitutional obligations, including their pivotal obligation to hold members of the executive accountable. The judgment contains ringing language about the importance of holding those in power accountable; of serving the people, not the powerful; and of following your conscience and doing what is right. According to the Constitutional Court the accountability mechanisms in the Constitution are:
all designed to ensure that the trappings or prestige of high office do not defocus or derail the repositories of the people’s power from their core mandate or errand. For this reason, public office-bearers, in all arms of the State, must regularly explain how they have lived up to the promises that inhere in the offices they occupy. And the objective is to arrest or address underperformance and abuse of public power and resources. Since this matter is essentially about executive accountability, that is where the focus will be.
One could read the judgment as a firm but gentle attempt to strengthen the hand of the NA vis-à-vis the executive in order to restore the delicate constitutional balance between the two branches. This is to ensure that the legislature complies with its constitutional obligation to hold the executive accountable to ensure that MPs serve the people and not the politically and economically powerful.
To recalibrate the relationship between a powerful and sometimes arrogant executive and a largely timid legislature, it would be necessary for members of the NA to remain loyal to the Constitution and to serve the voters who they represent – even in the face of pressure from their own political parties not to do so.
Strikingly, the unanimous judgment (authored by Chief Justice Mogoeng Mogoeng), suggests that MPs must choose the Constitution above their parties. While they are elected because they are members of political parties and must remain loyal members of their parties to retain their seats, they are – above all else – constitutionally obliged to remain loyal to the Constitution. When they are presented with a choice between their constitutional obligations and their party loyalty, they are legally required to obey the Constitution.
The choice is most stark in the case of the Speaker, whose constitutional role is for the first time spelt out in some detail by the Constitutional Court. As Chief Justice Mogoeng explains:
The Speaker is chosen from amongst Members of the National Assembly. That gives rise to the same responsibility to balance party interests with those of the people. It is as difficult and onerous a dual responsibility as it is for Members, perhaps even more so, given the independence and impartiality the position requires. But Parliament’s efficacy in its constitutional oversight of the Executive vitally depends on the Speaker’s proper exercise of this enormous responsibility. The Speaker must thus ensure that his or her decision strengthens that particular tenet of our democracy and does not undermine it.
Even the most level-headed and fair-minded person would find it difficult to strike this balance between being a senior leader in a political party, while also acting in an independent and impartial manner as Speaker. It is perhaps for this reason that the Constitutional Court provided some guidelines for the Speaker to guide her actions. If she fails to follow these guidelines, her decisions could always be reviewed and set aside by a court.
As far as a decision to order a secret ballot during a vote of no confidence in the President is concerned, the Court held (it is important to quote the court at length) that:
[T]he power that vests in the Speaker to determine the voting procedure in a motion of no confidence, belongs to the people and must thus not be exercised arbitrarily or whimsically. Nor is it open-ended and unguided. It is exercisable subject to constraints. The primary constraint being that it must be used for the purpose it was given to the Speaker – facilitation of the effectiveness of Parliament’s accountability mechanisms. Other constraints include the need to allow Members to honour their constitutional obligations, regard being had to their sworn faithfulness to the Republic and irrevocable commitment to do what the Constitution and the laws require of them, for the common good of all South Africans…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. Due regard must always be had to real possibilities of corruption as well as the prevailing circumstances and whether they allow Members to exercise their vote in a manner that does not expose them to illegitimate hardships. Whether the prevailing atmosphere is generally peaceful or toxified and highly charged, is one of the important aspects of that decision-making process.
As it will not be easy for ordinary members of a majority party to hold the leader of their party accountable by supporting a vote of no confidence in the President, Premier or Mayor if the vote is not secret (just imagine how scared DA legislators might be to support a vote of no confidence in Helen Zille), the Speaker would normally be required to allow a secret ballot when an important vote of no confidence in the President, Premier or Mayor comes before the legislature.
But there might be circumstances where it would not be appropriate to have a vote of no confidence by secret ballot. If there is a delicate balance of power in a chamber (say, the majority party has a majority of only one or two seats) which would make it easier to bribe members of the legislature to support a vote of no confidence, the Speaker might well have good reason not to order a secret ballot.
The decision by the Speaker to have or not to have a secret ballot for a vote of no confidence needs to be exercised rationally, taking into account the guidelines provided by the court. This means that a decision could be reviewed and set aside by a court if that decision is not rational. In other words, if the Speaker’s decision is not aimed at ensuring that MPs hold the executive accountable in an effective manner, but rather to further party political interests, the decision will be irrational and could be set aside by the courts.
Another striking aspect of the judgment is its emphasis on the role of individual MPs to take decisions in accordance with their constitutional obligations and in the best interest of the people of South Africa – even when their party would prefer them not to do so. The judgment explicitly states that one of the factors that is relevant to the Speaker’s decision-making in relation to a democratically-permissible voting procedure is that “an individual member remains free to follow the dictates of personal conscience”.
This suggests that the provisions in both the ANC and DA constitutions which subject elected representatives to automatic sanction (in the case of the DA), and disciplinary action (in the case of the ANC) if they disobey the party – even when that instruction undermines accountability or goes against the best interests of the voters whom they were elected to serve – might well be unconstitutional. Future judgments will have to consider whether this is indeed so. But the judgment is quite emphatic about this right of MPs to follow their conscience, stating that:
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.
It is perhaps rather optimistic to assume, as the Constitutional Court does, that voters peruse party lists before an election and vote for a political party at least partly based on who their candidates are. ANC members often claim, for example, that you do not vote for Jacob Zuma if you vote for the ANC. I suppose at the next election some DA members will claim the same thing about Helen Zille.
Which brings me to a final point about the judgment. (There is much more in the judgment that could be discussed, but I have already tested your patience with a 1700-word analysis.) The Constitutional Court judgment serves as a ringing endorsement of democracy and places its trust in the voters of South Africa to remain informed and vigilant and to make considered decisions about which party to vote for. The assumption is that voters will partly base their decision on how the elected representatives of different parties fulfil their constitutional obligation to hold the executive accountable.
What I get from reading between the lines of the judgment, is that the Constitutional Court believes that it is ultimately up to voters (not only MPs or members of the executive – who, after all, are the mere servants of the people) to ensure that we are governed well. To counteract abuse of power, corruption and arrogance, voters much remain vigilant and informed.
Ultimately voters must be prepared to punish those in power who are not prepared to obey their conscience and who are reluctant to comply with their constitutional obligations. After all, if voters are not responsive, engaged and critical, elected representatives will have no incentive to act in accordance with their conscience for the betterment of the society, but may well act to serve narrow political or economic interests.BACK TO TOP