Judiciary can rescue an impaired democracy

The Constitutional Court is called upon to strengthen democracy by allowing a secret ballot in the no-confidence vote, argues Ziyad Motala

ALL eyes are focused on the Constitutional Court, which is to deliberate on whether it should hear a case examining whether opposition parties’ application to have a secret ballot in the National Assembly on a motion of no confidence against President Jacob Zuma will be granted.

The decision could prove the most consequential in the history of our democracy.

Reasonable jurists differ on the meaning of the separation of powers and whether the court ought to defer to parliament, or render a judgment calling for a secret ballot.

American jurist John Hart Ely expounded a “representation reinforcement” theory of judicial review, which is particularly instructive to our current reality. Ely proclaimed that the US constitution embodies certain procedural principles that make the ultimate goal of representative democracy a reality.

He argued that when the judiciary finds that the political process has broken down, putting democracy at peril, the courts should intervene as a noble guard to rectify the dysfunction and reinforce the representational principles the constitution embodies.

South Africa is in the midst of our greatest citizen action and citizen renewal since 1994 against a president and his supporters seen as a threat to democratic norms and the constitution.

The court needs to ask itself whether it ought to adopt a conception of democracy that favours the interests of a narrow, self-serving group or whether it should unshackle the process, allowing democracy to work as an instrument for solving the nation’s critical concerns.

Our democracy is compromised, if not in free fall. Parasites have drawn legions of state and political actors from particularly the ruling party into their tentacles in a mutually profitable collaboration.

On any number of matters, public policy and political choices are neither rational nor based on the needs of the majority and the marginalised. Corruption is rife in state decisions. Key institutions of government and the ruling party are staffed by opportunistic sycophants of Zuma, rendering them supine.

In a pervasive environment of fear and retribution, the livelihoods and careers of those that buck the president are at stake.

Where many MPs from the ruling party stand and how they act against the malfeasance and misfeasance of the president is thus determined more by how their choice in a public vote will affect their livelihood and future than by an exercise of principled judgment. Therefore, on this matter, those that call for judicial deference to the democratic process are purveying a fiction.

Given a constellation of factors in the ruling party including deeply embedded rent-seekers with attendant coercion, the government and ruling party are not positioned for self-correction.

Possible deleterious consequences for the country, especially the poor and marginalised, are profound.

The pre-eminent question before the Constitutional Court involves this context, and what the appropriate process is for protecting democracy.

Ely points out that the judiciary is the custodian of the political process.

A lot of carping to the contrary notwithstanding, a ruling by the Constitutional Court that voting on the motion of no confidence should be conducted through a secret ballot does not represent judicial intervention to substitute the choices made through the political process.

Neither does it undermine the will of the majority. Instead, it would reflect a commitment to entrench certain values which override majoritarian or narrow impulses.

The court should unabashedly ground its involvement as an exercise of legitimate intervention to police the mechanisms of democracy. It requires the court to employ its power to strengthen democracy.

This approach is not novel to our constitutional adjudication. The court, in some of its most important decisions, including the Doctors for Life case, has, without labelling it as such, engaged in what Ely would term a representation reinforcement model of adjudication.

In a litany of subsequent cases we have been instructed that democracy is not limited to the right to vote.

We are at a juncture in our history where just as voting for the president is done through a secret ballot, voting against the president through a motion of no confidence should also be conducted through a secret ballot.

Requiring a secret ballot is not to dictate a result, but to protect the value of democracy.

There is an important relationship between judicial review and democratic government. Indeed, courts are responsible for making democracy function. The court needs to make a determination of proper process and recognise when a powerful faction is blocking the channels of democracy.

It needs to take cognisance of our sad reality of state capture by opportunistic elements, both in the state and ruling party, engendering a climate of fear and retribution, creating democratic dysfunction.

Once again, our Constitutional Court is called upon to serve as the noble guard to protect our cherished and hard-fought democracy.

Motala is professor of law at Howard Law School, Washington, DC

South Africa is in the midst of our greatest citizen action and citizen renewal since 1994