ConCourt shows up opposition
Ruling on the secret ballot issue, the ConCourt was not enlisted into the opposition’s agenda of undermining SA’s democratic values
AMILCAR Cabral, the father of the independence of Guinea Bissau and Cape Verde, famously stated: “Hide nothing from the masses of our people. Tell no lies. Expose lies whenever they are told. Mask no difficulties, mistakes, failures. Claim no easy victories.”
There is perhaps no better way of describing the opposition’s jubilation following the Constitutional Court judgment on the secret ballot other than a brazen attempt to tell lies so as to claim easy victory. A less generous interpretation would be that the opposition suffers from a bout of collective self-delusion.
But given the political investment it has in this escapade, it is perhaps better to delude yourself than accept an embarrassing defeat.
There are already attempts to distort the ConCourt’s judgment. For instance, adherents of the regime-change agenda have projected the judgment as presenting the speaker with two contradictory options – choose between power or the people. But the judgment does exactly the opposite. It speaks of “power to the people”.
To debunk this mischief, it is perhaps necessary to unpack and highlight issues that were before the ConCourt.
The first issue related to whether the speaker of Parliament is empowered to order that a motion of no confidence be decided by secret ballot. This could at best be described as a clarity-seeking question.
The second is the request by the opposition parties of the ConCourt to compel the Speaker to have the motion of no confidence be decided by secret ballot. This was the main prayer.
This must be seen in the context of a number of failed attempts of trying to pass a motion of no confidence in the president.
In the first instance, the ConCourt reaffirmed the discretionary and constitutional powers of the speaker.
The ConCourt noted that “when a secret ballot is appropriate‚ is an eventuality that has not been expressly provided for and which then falls on the speaker to determine. That is her call to make‚ having due regard to what would be the best procedure to ensure that members exercise their oversight powers most effectively.” This was a non-starter since there was nothing in the Constitution that stated expressively otherwise.
Regarding the second matter, the ConCourt rejected the request by the opposition parties that the motion be entertained through a secret ballot. And consistent with its expression on the first matter, the ConCourt remitted the request to the Speaker to make a fresh determination.
Contrary to valiant attempts to portray the opposite, a preponderate narrative advanced by most in the media, the ConCourt did not order the speaker to conduct the motion of no confidence through a secret ballot.
If anything, the ConCourt’s own reasoning suggests its leaning is towards an open ballot.
Specifically, the ConCourt noted that ours is a constitutional democracy premised on the values and principles of transparency.
The ConCourt did not leave it there. It highlighted some of the key considerations that should be uppermost in the mind of the speaker in making her determination.
First, the ConCourt was alive to the dangers, risks and inconveniences that are likely to be suffered in the event of a motion being decided through an open ballot.
It noted “when the risk that inheres in voting in defiance of the instructions of one’s party is evaluated, it must be counterbalanced with the apparent difficulty of being removed from the Assembly. Openness is one of our foundational values.”
The ConCourt reminds parties that the Constitution enjoins the National Assembly that in conducting its business it must have “due regard to representative and participatory democracy, accountability, transparency and public involvement”.
Therefore consistent with the imperatives of openness and transparency, “the electorate is at times entitled to know how their representatives carry out even some of their most sensitive obligations, such as passing a motion of no confidence. They are not supposed to always operate under the cover of secrecy.”
As if to state that there is no honour in being a coward or conducting one’s business in the cover of darkness, the ConCourt reiterated the obvious by noting that “considerations of transparency and openness sometimes demand a display of courage and the resoluteness to boldly advance the best interests of those they represent no matter the consequences, including the risk of dismissal for non-compliance with the party’s instructions. These factors must also be reflected upon by the speaker when considering whether voting is to be by secret or open ballot.”
Perhaps concerned by the ease with which secret ballot could be abused, the ConCourt warned: “Crass dishonesty, in the form of bribe-taking or other illegitimate methods of gaining undeserved majorities, must not be discounted from the speaker’s decisionmaking process.
“Anybody, including members of Parliament or of the judiciary anywhere in the world, could potentially be ‘bought’. When that happens in a motion of no confidence, the outcome could betray the people’s best interests.”
Evidently, the ConCourt was alive to the rumours that are circulating around in which MPs are being offered money to vote against their own parties or their own leaders.
In the final analysis, the ConCourt refused to be enlisted into the opposition’s political agenda of defeating and weakening the ANC.
Indeed, the opposition tried to lure the ConCourt into its scheme by invoking the constitution and one’s conscience. It sought to create a false dichotomy between one’s conscience and a voting that is consistent with the dictates of one’s party as if the two are necessarily mutually exclusive. Neither is voting in accordance with one’s party position necessarily unconstitutional.
The very Constitution that members of the ANC are reminded of recognises and entrenches multipartyism.
In other words, the Constitution sees no contradiction in voting for one’s party and voting according to one’s conscience. Indeed, the link between multipartyism and the Constitution was highlighted by the very Constitutional Court in the Ramakatsa case.
Delivering his judgment, the former deputy chief justice Dikgang Moseneke had this to say: “In the main, elections are contested by political parties. It is these parties which determine lists of candidates who get elected to legislative bodies.
“Success for political parties in elections lies in the policies they adopt and put forward as a plan for addressing challenges and problems facing communities. Participation in the activities of a political party is critical to attaining all of this.
“Public resources are directed at political parties for the very reason that they are the veritable vehicles the Constitution has chosen for facilitating and entrenching democracy.”
Moseneke went further to drive the point home: “Our democracy is founded on a multiparty system of government. This means a person who intends to vote in national or provincial elections must vote for a political party registered for the purpose of contesting the elections and not for a candidate.
“It is the registered party that nominates candidates for the election on regional and national party lists. The Constitution itself obliges every citizen to exercise the franchise through a political party. Therefore political parties are indispensable conduits for the enjoyment of the right given by section 19(3)(a) to vote in elections.”
Stripped of all theatrical performance and the deployment of legal gymnastics, the case before the Constitutional Court was simple.
The opposition’s previous seven motions of no confidence in the president failed dismally. The secret ballot was the latest stunt by the opposition in their attempt to remove the ANC hegemony. It was an attempt to reverse the electoral outcomes by enlisting the services of the judiciary.
The opposition is hypocritical. It requested the ConCourt to force ANC members to embark on an exercise that it would not tolerate within its own ranks.
The DA’s constitution provides, for instance, that a “member ceases to be a member of the party when he or she being a public representative of the party in a legislative body, in any meeting of that legislative body, votes in a manner other than in accordance with a party caucus decision which is consistent with party policy, in that legislative body, or being a single public representative in a caucus votes in a manner inconsistent with the instructions of higher party structures or party policy”.
The other members of the lynch mob have policies that carry the same penalty for members who decide to go rogue.
In pleading to the ConCourt, the opposition was requesting the court to condone what amounts to daylight betrayal and dishonesty. The ConCourt was being asked to throw out of the window the principles of accountability and transparency.
Contrary to the manner in which the opposition has projected itself, its vote would have nothing to do with conscience or the upholding of the Constitution. Members of the opposition will be voting according to their hatred for President Zuma and the ANC.
They each have vowed and exist to defeat the ANC. Except for the DA, which Julius Malema described as a party of white racists, each of the opposition parties is motivated by dictates of personal vengeance. Zuma is after all directly and indirectly implicated in their expulsion from the ANC. Their departure and/ or expulsion was inglorious. Each leader of the opposition was a high flyer in the ANC and had assumed the status of invincibility.
But their bravado and infantile display was summarily cut. The posture of these leaders is that of people who have not recovered from the incurable nightmare of defeat and humiliation.
It would seem that the ConCourt refused to be hoodwinked into the designs of political parties.
As it reminded all and sundry: “The most effective extra-parliamentary mechanism for holding the people’s elected representatives accountable is a general election.”
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TRANSPARENCY: The ConCourt reminds parties that the Constitution enjoins the National Assembly that in conducting its business, it must have ‘due regard to representative and participatory democracy, accountability, transparency and public involvement’.