MPS will now be able to vote freely

THE Constitutional Court delivered a watershed judgment on Thursday, ruling that the constitution does give the Speaker of Parliament the discretion to determine the voting procedure in a motion of no confidence in the president.

I was surprised by the Concourt’s exorbitant cost order against Parliament. In my view, the Speaker’s concern at the constitution’s silence on the procedure for such a motion was valid and her response was appropriate to the opposition parties’ request.

However, I realised it is likely that the Concourt wanted Parliament’s attention and to take cognisance of its ruling and advice.

Chief Justice Mogoeng Mogoeng emphasised the ruling was unanimous. He said South Africans conscientiously chose a system of government where the people shall govern through designated servants and messengers in the judiciary, legislature (Parliament) and executive.

The powers and resources assigned to each arm do not belong to the officebearers. They must be loyal to the core constitutional values of accountability, responsiveness and openness. And they must ensure they manage state resources for the good of the people.

Parliament has to oversee the performance of the president and cabinet, and hold them accountable for the use of state power and resources entrusted to them.

The tabling of a motion of no confidence in the president was triggered by the dismissal of the minister of finance and his deputy, and the subsequent sovereign downgrade to subinvestment grade or “junk status”.

The Chief Justice noted that the president had a free hand in assembling and dismissing his executive team.

The Concourt added the president, his deputy, ministers and their deputies were enjoined by the principles of accountability, responsiveness and openness. Under the constitution, they must report fully and regularly to Parliament on their obligations.

After all, Parliament “is elected to represent the people and to ensure – Government engagement specialist and consultant government by the people under the constitution”.

Representing the people means ensuring members of the executive honour their obligations to the people. Other than through the executive reporting to parliamentary committees, the National Assembly and National Council of Provinces, the constitution also provides for two processes to remove the president from office.

The first, impeachment, can be invoked when there is a serious violation of the constitution or the law, serious misconduct or an inability to perform the functions of the office.

The second, a motion of no confidence, constitutes a threat of the ultimate sanction that the assembly can impose on the president and cabinet, should they fail or be perceived to have failed to carry out their constitutional obligations.

The Chief Justice is of the view it is an effective accountability or consequence-enforcement tool designed to remind the president and cabinet of what could happen should regular mechanisms prove or appear to be ineffective.

However, to ensure the threat is effective, it is likely that the reason for leaving the voting procedure open to Parliament’s discretion on a motion of no confidence was so that it could determine its voting procedure rather than have it prescribed.

The Chief Justice said that, as in the case of general elections, where a secret ballot was deemed necessary to enhance freeness and fairness, so it was with the election of the president by the assembly.

This would allow MPS to vote freely and effectively, in accordance with their conscience, without undue influence, intimidation or fear of disapproval by others.

During the certification of the constitution, the Concourt addressed the conflict that may arise with MPS voting: “It was submitted that this failure to effect full separation of powers enhances the power of executive government (particularly in the case of the president and provincial premier), thereby undercutting the representative basis of the democratic order… an individual member remains free to follow the dictates of personal conscience. This is not inconsistent with democracy.”

There is nothing in law that requires MPS to vote along party lines. This would mean that in the event of a conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to act only in the best interests of the people must prevail.

On the issue of transparency and the secret or closed ballot, the Concourt stated that the electorate was at times entitled to know how their representatives carried out even some of their most sensitive obligations, such as passing a motion of no confidence.

So MPS were not supposed to always operate under the cover of secrecy. Considerations of transparency and openness sometimes demanded a display of courage and a resolve to boldly advance the best interests of those they represent no matter the consequences, including the risk of dismissal for noncompliance with the party’s instructions.

The Speaker had to reflect on these factors when considering whether voting was to be by secret or open ballot – in which case the right to know may be trumped by a need for accountability.

The Concourt suggested Parliament find safeguards to ensure MPS voted with their consciences, without undermining the need to toe the party line.

Parliament will now have to consider the ruling on the interpretation of the constitution and the guidance offered by Concourt. Should a motion of no confidence succeed, the MPS would have to elect a new president, who would then have to appoint a new cabinet.

Could this cause further political instability and lead to more downgrades?