Secret vote a constitutional quandary

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THERE IS controversy over a request by opposition parties for a secret ballot in the no-confidence debate on President Jacob Zuma in the National Assembly.

Opposition parties are convinced, considering the dissent in the ANC over the cabinet reshuffle and subsequent downgrade of our economy by rating agencies to junk status, that were such a ballot allowed, enough ANC members would vote with opposition members for the no-confidence motion to succeed, resulting in the termination of Zuma’s term as president.

To understand why a secret ballot is deemed necessary by opposition parties, it is essential to comprehend the nature and operation of our extant electoral system.

Since our first democratic election in 1994, South Africa, in terms of the interim constitution, and in subsequent elections, in terms of the 1996 constitution, the list system of proportional representation has been used.

This system, although it has advantages by virtue of its proportional character, unfortunately gives the leadership of political parties control over public representatives, while simultaneously freeing them from the legitimate and necessary constituency pressures to which representatives in the Westminster – first past the post system – are subject and which was used in elections in South Africa before 1994.

In this regard, electoral systems can be characterised by involving either an imperative or free mandate.

In the latter, Members of Parliament, although they are invariably also members of a particular party, have a free mandate to cross the floor and join another party or act independently and not forfeit their parliamentary seats.

In British parliamentary history, World War II statesman Winston Churchill’s defection from the Conservative or Tory Party in 1904 to join the Liberal Party is exemplary.

After defection, he did not lose his seat and went on to become a prominent cabinet member of the Liberal Party government after its election to office in 1906.

This so-called crossing the floor occurred in South Africa, before 1994, during the period of discredited white minority rule, since 1910.

In contrast to the free mandate, there is an imperative mandate, which applies in terms of the list system of proportional representation and operates in terms of our 1996 constitution.

Implied in such a list system of proportional representation is what is known as a defection mechanism, which allows political parties to terminate the political membership of a representative who defects to another party or fails to comply with caucus decisions of the leadership of the party concerned. This means that should ANC MPS vote with the opposition in the no-confidence debate, then the ANC could and most certainly will terminate their membership and they will lose their seats. This is as a powerful deterrent for members who want to vote according to their conscience and not party diktat. Such a ballot would allow these members to vote for what they deem to be in the interests of the country.

Lawyers for the UDM’S Bantu Holomisa have approached the Constitutional Court about a secret ballot, seeking firstly to argue the case of direct access to the court and secondly substantively for a secret ballot in recording the voting related to the no-confidence debate.

Holomisa indicated (The Mercury, April 12) that the court’s decision to even entertain the application was a partial victory for the opposition.

Such a decision being pending by the Concourt would, by virtue of the time frame, require a postponement of the vote of no confidence in the president, and a letter has been written to the Speaker requesting this.

Although in the circumstances, the Concourt is likely to grant direct access, on the substantive issue involving an instruction to the Speaker, to grant a secret ballot, cogent legal and jurisprudential argument would be required and it could have profound constitutional and political consequences.

Clearly, our legal and constitutional jurisprudence is the world’s most fascinating. We await with bated breath the outcome of the application to the Constitutional Court and the no-confidence debate.

• George Devenish is an emeritus professor at UKZN and helped draft the interim constitution in 1993.