By the people, for the people
“AMANDLA (ng)awethu, maanda ndiashu, maatla ke a rona or matimba ya hina (power belongs to us) and mayibuye iafrika (restore Africa and its wealth) ...are more than just mere excitementgenerating slogans,” Chief Justice Mogoeng Mogoeng said in introducing his landmark judgment on Thursday.
Justice Mogoeng invoked these emotive slogans, which had historically animated the cause of freedom, to lay the basis for a ruling that affirms the dominion of the citizenry over the republic.
He not only resolved parliamentary Speaker Baleka Mbete’s dilemma of whether she could allow a secret ballot on a motion of no-confidence, but also dispelled anxiety over issues that may trample on the separation of powers.
Justice Mogoeng brilliantly pointed out that anxiety arises from an erroneous focus on the form instead of the essence. Democracy is essentially under-girded by the principle that citizens elect representatives, who then govern not only on their behalf but also in pursuit of their interests. Democracy, therefore, is people-centred.
The institutional and legislative infrastructure is merely an actualisation of the fundamental principle that the people shall govern.
All three spheres of government – i.e. Parliament, the executive and the judiciary – are individually constituted and relate in a manner that brings this sacred principle to life.
In answering the question, such as the one that the Constitutional Court (Concourt) confronted, the approach shouldn’t be to fuss over the separation of powers. Rather, the premise should be the electorate, guided by the question: how do these spheres of government best uphold the sovereignty of the electorate? Which of the three does what is then guided by a preoccupation with the primacy of the citizenry.
In other words, the performance of each sphere of government is evaluated upon the extent to which it advances people’s power. This means that their value is not inherent, but relational. – Associate professor of politics at the University of Johannesburg
That is why they are held accountable, constantly evaluated and face censure when failing to execute their mandates.
Parliament is evaluated by voters, who then pass their judgment through elections of whether officials do their job efficiently. Part of that job involves exercising oversight over the executive to ensure it does what it’s meant to do.
Where there’s a dispute between the two spheres of government, the judiciary is called upon to adjudicate. While unelected, as he admits, judges are nonetheless appointed on merit by public representatives with specific responsibilities to execute. Where they are found wanting, judges and magistrates are removed from the Bench.
What Justice Mogoeng’s ruling underlines, therefore, is that the executive is not being singled out for unfair scrutiny. The two other arms of government are subject to a similar level of probing, albeit in different ways, and liable to being penalised where necessary.
The idea is to avoid complacency and ensure each organ performs optimally. That is what the Concourt was required to do: how best to strengthen the role of Parliament to enforce accountability over the executive.
The motion of no-confidence was always present, but rendered mute by open voting. Individual MPS, as the United Democratic Movement submitted at the Concourt, could not vote based on their conscience, but followed the party’s dictate due to fear of reprisals. If allowed to vote secretly, MPS were likely to defy the party by voting for the removal of Jacob Zuma.
The Concourt was persuaded by the argument that the voting procedure should facilitate the expression of individual conscience. Conscience, Justice Mogoeng argued, enable MPS to uphold the interests of the electorate in the best way possible. They simply do what is expected of them by the constitution, to which they have pledged allegiance.
Where MPS are forced to choose the party line, over constitutional prescripts, they’re bound to flounder in their responsibility to the people. This is because the party doesn’t always act in the public interest. That’s what happened in the case of Nkandla, and the Concourt found to that effect.
The secret ballot, therefore, enhances the effectiveness of the motion of no-confidence as the ultimate mechanism to enforce accountability.
This is partly in recognition of the inherent danger entailed in MPS voting openly against their president. There are reprisals for going against the president. That’s why Pravin Gordhan and Mcebisi Jonas were fired as minister and deputy minister respectively.
Makhosi Khozi, the contrary ANC MP, has been threatened with violence for saying she’ll follow her conscience when voting on the motion.
Barring a secret ballot in the motion of no confidence, therefore, is akin to stifling Parliament in the exercise of its duties. It gives the president carte blanche to act as he pleases without consequences. Without a secret ballot, we have a political system with a veneer of accountability but which ultimately compromises the interests of its electorate. Its democratic credentials are highly questionable.
This is what the Concourt has now remedied. It has enabled us to become a wholesome democratic self. Even more impressive is the elegance with which the Concourt rectified our democratic deficit. Contrary to what some had feared, Justice Mogoeng did not impugn the integrity of Parliament.
He did not prescribe what Parliament should do in its own business, nor make up what is not allowed by the constitution. He has simply enlightened the Speaker of Parliament that she can, actually, conduct the voting secretly on the motion of no confidence.