Leaving aside such political advantages and disadvantages as there may be for delaying the vote in the no-confidence debate on the future of the President and his Cabinet, the notion that some handy guidance from the Constitutional Court may be forthcoming through the impending litigation is without foundation.
The UDM may or may not persuade the Constitutional Court that it is within the power of the Speaker, or failing her, of the National Assembly itself, to direct that the vote on the motion of no-confidence be held in secret. The Speaker contends that she has no such power, but she is not averse to finding out from the court whether it does exist in some or other form. It probably does; this will probably emerge from the crucible of argument presented in the urgent application brought by the UDM, which the court has agreed to hear, but only after the scheduled date of the no-confidence debate.
Whether the UDM wins, loses or draws in its quest to better define the powers of the Speaker or National Assembly, one thing is as close to a racing certainty as one can get in litigation: the court is not going to order directly and in terms with teeth that the ballot in the no-confidence debate be conducted in secret. This prediction is based on the workings of the doctrine of the separation of powers which is central to our new constitutional order. In essence, it means that each sphere of government (executive, legislature and judiciary) should stick to its own knitting and should not try to knit rows or drop stitches on behalf of either of the others.
The Constitution does not give the court the power to determine how votes in the National Assembly should be conducted on any particular occasion. That is the business of the Speaker as presiding officer or of the National Assembly itself as a self-regulating body that makes its own rules. All that the court can do is determine whether or not it is constitutionally compliant to allow a secret ballot. It will not order one; instead, it will defer to the powers of the Speaker or National Assembly to regulate proceedings in whatever form the Court regards as constitutionally appropriate. When the moment of truth arrives in the debate, some months from now, the Speaker will be obliged to exercise her discretion as to whether or not to hold the ballot in secret. This step may only be possible after an amendment to the Rules of the National Assembly, should the court issue a declaratory order that a secret ballot would be constitutionally compliant.
If the Speaker, contrary to the wishes of the opposition, rules that the usual open ballot system must be used, then the opposition has the onerous task of attacking the reasonableness or rationality of the exercise of that discretion by taking the Speaker on review in the High Court. There is a prospect that a direct approach to the Constitutional Court might succeed, but that is not the usual way in which reviews are conducted and the Court prefers not to sit as a court of first instance if it does not have to do so. Even in the unlikely event of the Court sitting as a court of first instance it will be many months before a hearing and a ruling in the review proceedings.
It is more likely that whoever loses that High Court review will want to test the outcome in the Supreme Court of Appeal and the loser in the Supreme Court of Appeal will want the ultimate answer from the Constitutional Court. By the time all the various litigious steps have been taken the term of office of the President will have long ended through effluxion of time and not because he lost in a motion of no-confidence. “Heh, heh, heh” is how the consummate chess player is chuckling at the thought.
For the sake of argument, let’s assume that the court orders that it is within the powers of the Speaker, in her discretion, to order a secret ballot in a no-confidence debate, or any other debate for that matter. Would a refusal to make the vote on the DA motion of no-confidence be legally assailable on review? This seems to be open to doubt. A no-confidence debate is one in which every active citizen ought to be interested. Indeed, judging by the size and frequency of the rolling mass action around the theme of “Zuma must go”, there is a great deal of public interest in the outcome of the debate.
Why then should the members of the public who are interested be deprived of access to information regarding the manner in which their representatives in the National Assembly actually vote in the ballot? It is surely information they require for the exercise or protection of their right to vote for those whose vote in the no-confidence debate pleases them, come the next general election. The right to vote is enshrined in the Bill of Rights as is the right to access to information.
More fundamentally, the foundational values of the new constitutional dispensation include “a multi-party system of democratic government, to ensure accountability, responsiveness and openness” to use the words of section 1 of the Constitution.
The state is obliged to respect, protect, promote and fulfil the rights in the Bill of Rights while always acting accountably, responsively and openly. It is certainly cogently arguable that none of the values on which the state is founded, as quoted above, are served by the holding of a secret ballot in parliamentary debates.
If intimidation, harassment and threats are the mischief the UDM application is tailored to address, interdicts and criminal proceedings are the appropriate remedies, not a secret ballot. A witch-hunt seeking out those who “jumped ship” by disobeying the party whip after a secret ballot is less desirable that an open vote.
It is so that a secret ballot for the election of the President is allowed under section 86(2) of the Constitution. It does not follow that a secret ballot should be allowed in a no-confidence motion. Different considerations apply to an election of a president, especially if coalition politics require elimination procedures when there are lots of small parties and there is no clear winner in the first round because no party commands 201 votes in the presidential election. The reason for the secrecy is that in the elimination rounds votes may be cast secretly for candidates who are actually the second or third choice of those casting the vote. This is how coalitions are cobbled together.
As the President has pointed out in opposing the secret ballot application, if there is only one candidate for president then no ballot occurs. This situation does not obtain in a no confidence debate.
The founders of the Constitution saw merit in allowing a secret ballot in the circumstances that may arise if a multitude of presidential candidates are vying evenly for the post. They were acting in the interests of promoting and preserving the values of the Constitution. None of the complexities of elimination rounds arise in a no-confidence debate. The motion is either carried if 201 or more vote yes, or it fails. This is a strong reason for eschewing secrecy.
From the perspective of the ordinary voter, to whom Parliament is accountable in a system that is based on the famous imperative that “The people shall govern”, it seems obvious that voters will want to know which of their representatives supported the motion, which of them abstained and which followed party discipline by voting against the motion. This is useful information for voters in the next election and it also affords them the means of exacting accountability from their current representatives in respect of what voters may regard as the right thing to do in the whole “Zuma must go” affair.
When a ballot is secret, it is not only secret from party bosses, it is also secret from the public, especially the voting public whose interest in their representatives voting patterns or decision on the motion is fundamental to their ability to cast their precious and hard won vote in a general election in a manner that is based on sound logic and accurate information.
In all these circumstances, the constitutional wisdom of seeking a secret ballot in a no-confidence debate is questionable. Perhaps, on reflection, the UDM will reconsider its position. The cowardice of those ANC members of Parliament who kowtow to the authority of the party and do not vote in a manner that accords with accountability to the electorate, will surely come back to haunt them at the ballot boxes in the general election of 2019.
The insistence on a secret ballot started when the ANC monolith had fewer cracks. Now former president Kgalema Motlanthe has suggested that ANC members who break ranks and vote honestly in the no-confidence debate are immune to disciplinary steps (correctly so) and former president Thabo Mbeki has, with equal rectitude, reminded them of their constitutional obligation to represent the people, not the party. He cites the Nkandla judgment cogently in support of his argument.
The spectre of successful disciplinary proceedings against ANC members who break ranks is greatly diminished, if it has not actually vanished. Jeremy Gauntlett SC has skewered it in his timely opinion piece in the Sunday Times. The disciplining, if pursued, could take until the next general election to complete or beyond if litigation ensues.
Is it not high time to openly, accountably and responsively get on with the usual vote on the motion? Legally it would seem so. However, given party loyalties and in the theatre of perceptions that go to make up the world of politics, other considerations than the purely legal may apply. DM
Paul Hoffman SC is a director of Accountability Now and is the author of Confronting the Corrupt