Concourt reserves judgment on secret ballots
A SECTION in the Constitution which deals with voting in a motion of no confidence in the president does not specify which method should be adopted by the National Assembly.
This is the view of the Speaker of the National Assembly‚ Baleka Mbete‚ who is opposing an application by the United Democratic Movement (UDM).
Last month‚ the UDM asked Mbete to table a motion of no confidence in President Jacob Zuma‚ following his controversial Cabinet reshuffle in March‚ which resulted in the removal of former finance minister Pravin Gordhan and his deputy Mcebisi Jonas.
In its request for the motion of no confidence to Mbete on April 3‚ the party said there had been reports of intimidation of MPs on the planned vote‚ hence its request for a secret ballot.
The Speaker refused‚ prompting the UDM to approach the Constitutional Court.
The party wants the court to declare that section 102 of the Constitution requires that motions of no confidence must be decided by secret ballot.
The section states that if the National Assembly‚ by “a vote” supported by a majority of its members‚ passes a motion of no confidence in the president‚ the president and other members of the Cabinet must resign.
Marumo Moerane SC‚ for Mbete‚ told the court that the main question dealt with by the court yest was on whether or not Section 102 (2) required the vote to be by secret ballot.
“For this court to have exclusive jurisdiction‚ one requires the identification of a particular duty which the National Assembly had not fulfilled‚” Moerane said.
Moerane said the allegation by the UDM was that parliament had failed to fulfil a constitutional obligation.
“In order for the applicant to succeed in this court‚ it must show that section 102 (2) imposes an obligation on the National Assembly to have a motion of no confidence in the president be decided by secret ballot. Our main submission is that the section does not impose such an obligation.”
Moerane said the section in question only conferred the power on the National Assembly to pass a motion of no confidence if the motion was supported by the majority of members.
“The voting procedure for deliberating on such a motion is governed by the rules of the National Assembly. And the power of the National Assembly to make those rules is derived from section 57 of the Constitution.”
Moerane said Section 57 (1) provided for the National Assembly to determine and control its internal arrangements and procedures and make rules and orders concerning its business with regard to participatory democracy and public involvement.
“The question of whether the National Assembly can hold a motion of no confidence by secret ballot depends on what the National Assembly has decided.”
Ishmael Semenya SC‚ for Zuma‚ also asked for the application to be dismissed.
He said the provision in the Constitution which related to a vote of no confidence did not prescribe how that vote was to be cast.
Semenya said the Constitution elected to allocate rule-making on the vote to the legislative arm of government. He said in the exercise of that power‚ the National Assembly had made an election on which method voting should take place.
UDM counsel Dali Mpofu SC said from reading the Constitution and National Assembly rules‚ it was clear the rules contemplated a secret ballot.
Mpofu said the only reason why there was a secret ballot was because of the need to protect the vote‚ in this case the MPs.
The Constitution provides for a secret ballot when a president is elected by Parliament.
He said in the election of the president‚ MPs were electing one person. If the motion of no confidence succeeded‚ it would mean the resignation of the president and his Cabinet.
The court reserved judgment. — TMG