UDM chose wrong route to secret vote

In his article, “Concourt should find for the UDM” (April 13), Eusebius McKaiser argues that “active citizens must read cases, think about them and be prepared to hold the court accountable for poor legal adjudication”. The American legal scholar Barry Friedman agrees that “public monitoring of the judiciary, and judicial responsiveness to public opinion over time, are essential to mediated popular constitutionalism”.

McKaiser argues that the Constitutional Court must hear the United Democratic Movement (UDM) case for a secret ballot in Parliament on a motion of no confidence in the president, on the grounds that it is not the same as the Tlouamma case, in which opposition parties contended that the National Assembly elects the president by secret ballot and thus the president has to be removed the same way.

What’s new in the UDM case for a secret ballot is the allegation of intimidation of and threats to ANC parliamentarians if they are seen to vote against the president. This undermines their oath to hold the government accountable.

The full Bench decided that the Constitution is not prescriptive as to the manner in which the vote must be cast and emphasised that Parliament is entitled to regulate its internal proceedings and procedures.

The National Assembly rules 77 to 93 regulate voting processes and do not provide for secret ballot.

Rule 2 (1) gives the speaker the discretion to fashion a rule for anything not contemplated in the rules. The UDM argues that the speaker has discretion on whether to use a secret ballot. The Constitution only requires a vote to be supported by a majority of parliamentarians.

The apex court reflected on National Assembly Rule 2 (1) in the Mazibuko vs Sisulu and Motshekga (2013) case, stating that it “is permissive not peremptory”. The speaker cannot alter or override the rules (see paragraphs 28 to 20 of the rules), but can consider new ones within her areas of discretion.

The UDM case is in effect an appeal of the Tlouamma case through the back door. The UDM waited for another vote of no confidence to launch an appeal in the guise of a new matter.

In my view, there are no prospects of success on the merits. UDM leader Bantu Holomisa has approached the wrong forum.

He has two political options: to convince the ANC to support an amendment of the National Assembly rules to introduce a secret ballot for a vote of no confidence, or to keep campaigning for the masses to vote the ANC out of power in 2019.