It’s a question of freedom

For so long, the drafters of our democratic constitution had been hailed for having produced the most progressive constitution in the world. However, the same drafters omitted to include in the document a very important element of democracy, the right to secrecy or, specifically, the use of secret ballot by elected representatives as way to remove an incumbent president who is found to be acting contrary to law.

While the constitution contains various freedoms and guarantees through a Bill of Rights, it is silent on the right or freedom of MPs to use a secret ballot in a vote for or against the president. It appears that this is one freedom that the drafters were prepared to sacrifice on the erstwhile negotiating table.

That the president was voted into office via a secret ballot but cannot be removed by the same secret vote is in itself mind-boggling. With this omission, the constitution’s architects failed not just the parliamentarians but the nation, whose freedom should not be limited.

This whole episode has exposed for all to see that fact that the proportional representation (PR), or party system, is flawed. Contrary to the spirit of the constitution itself, MPs elected through the PR electoral system do not enjoy the freedom of speech or the choice to use their consciences to vote on a matter they do not agree with in parliament.

The plight of ANC MP Makhosi Khoza is a good example that an independent-minded parliamentarian could get maligned or subjected to death threats for doing the job of oversight properly in the portfolio committees.

This fear to act or speak against the party wishes stifles the robust debate and defeats the notion of holding the government accountable for their wrong decisions.

The pending Constitutional Court ruling had never been so anticipated as is the case with the secret ballot issue application. If the robust proceedings in the court last week are anything to go by, some hint was given that Chief Justice Mogoeng Mogoeng and his team will face difficulty in deciding on this matter.

Their decision would be premised on the fact that the use of a secret ballot to remove the president is not provided for in the constitution. They would be wary of imposing the secret ballot on parliament as that would be interpreted as encroaching on the powers of another sphere, the legislature.

If the judges decided on the secret ballot in principle and left the details to the speaker, such a ruling would be tantamount to a no decision. It would be business as usual for Speaker Baleka Mbete, who has never acted in a manner to put the ruling ANC at a disadvantage. Also, the ANC would use its majority to defeat any motion by the opposition. Therefore, the latter scenario would be a futile exercise.

But should the push come to a shove, the court’s imposition of the secret ballot would be the best decision for a functional democracy, notwithstanding its interference with separation of powers. However, this would definitely require a constitutional amendment. By the way, there is nothing wrong in amending the constitution positively in order to strengthen democracy.