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

The New Age (KwaZulu-Natal) - - Opinion & Analysis - Prof Sipho Seepe is a writer and commentator

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.”

Fact Num­ber 1: Fact Num­ber 2: Fact num­ber 3: Fact Num­ber 4:

PIC­TURE: THAPELO MOREBUDI

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’.

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