Com­pet­ing no­tions of ac­count­abil­ity

The Star Early Edition - - INSIDE -

IT HAP­PENED as many sus­pected it would. South Africa’s Con­sti­tu­tional Court or­dered that, de­spite the con­sti­tu­tion’s si­lence on the mat­ter, the Speaker of Par­lia­ment has the con­sti­tu­tional power to pre­scribe that a vote on a mo­tion of no con­fi­dence in the coun­try’s pres­i­dent may take place by way of a se­cret bal­lot.

It also found that Baleka Mbete was mis­taken when she de­cided ear­lier this year that she did not have this power.

But the court didn’t go as far as the United Demo­cratic Move­ment and other op­po­si­tion par­ties that had chal­lenged Mbete’s de­ci­sion, had hoped. It would not force her to or­der a se­cret bal­lot in the up­com­ing mo­tion of no con­fi­dence in Pres­i­dent Ja­cob Zuma. It felt that this would go against the sep­a­ra­tion of pow­ers, by un­duly pre­scrib­ing to Par­lia­ment how it should carry out its func­tions.

Ac­cord­ingly, the court or­dered Mbete to re­take the de­ci­sion on whether to al­low the se­cret bal­lot. It em­pha­sised that in do­ing so, she must act ra­tio­nally. It or­dered that she has to take ac­count of all sur­round­ing cir­cum­stances, in­clud­ing the pos­si­bil­ity that MPs may feel in­tim­i­dated by their po­lit­i­cal par­ties to vote in a par­tic­u­lar way.

The court em­pha­sised that Par­lia­ment has a con­sti­tu­tional obli­ga­tion to hold the ex­ec­u­tive to ac­count. Mem­bers must there­fore act in ac­cor­dance with their con­sti­tu­tional obli­ga­tions, their con­sciences and their oaths of of­fice.

From a con­sti­tu­tional law per­spec­tive, the court’s stance is un­doubt­edly cor­rect. As al­ways, it has shown great re­spect for Par­lia­ment’s power to guide its own pro­cesses. At the same time, the court has clar­i­fied the ex­tent of the Speaker’s dis­cre­tion in a way that aims to en­sure that she, and Par­lia­ment as a whole, ex­er­cise their pow­ers in a way that is con­sis­tent with their con­sti­tu­tional obli­ga­tions.

What the op­po­si­tion asked for was al­ways go­ing to be a long shot. Want­ing a court to or­der the Speaker to ex­er­cise a dis­cre­tion that is le­git­i­mately hers alone, be­fore she has even ap­plied her mind to the ques­tion, would in­volve a real stretch of the sep­a­ra­tion of pow­ers.

What will Mbete de­cide? Will her de­ci­sion, if it goes against a se­cret bal­lot, be chal­lenged? More per­ti­nently, ought it?

Many be­lieve that a de­ci­sion not to hold the vote se­cretly would sim­ply be a thinly veiled at­tempt to shield Zuma from ac­count­abil­ity. Such a de­ci­sion would there­fore be – if not ir­ra­tional and un­con­sti­tu­tional – at least un­con­scionable. But, as the court ac­knowl­edged, there are dif­fer­ent, per­haps com­pet­ing no­tions of ac­count­abil­ity at stake. On the one hand, the dom­i­nance of the ANC in Par­lia­ment and its own in­ter­nal struc­tures of po­lit­i­cal ac­count­abil­ity have seem­ingly com­pro­mised the con­sti­tu­tion­ally de­signed ac­count­abil­ity of the ex­ec­u­tive to Par­lia­ment. An open bal­lot could only ex­ac­er­bate this.

On the other hand, a se­cret bal­lot would sac­ri­fice MPs’ ac­count­abil­ity, not only to their party peers, but also to the coun­try’s cit­i­zens. How can we be as­sured that an ANC politi­cian who votes dif­fer­ently un­der a se­cret bal­lot than she would un­der an open one is do­ing so based on her con­science rather than on some less honourable whim? What is to stop a cyn­i­cal group of DA politi­cians from vot­ing in favour of re­tain­ing Zuma be­cause they be­lieve this con­tin­ued scan­dal-prone pres­i­dency would bet­ter serve the their chances in the 2019 elec­tion? Would it not make it more dif­fi­cult for such politi­cians to sub­vert the pub­lic in­ter­est in these ways if the cit­i­zenry and fel­low MPs could see them?

Per­haps South Africa’s cur­rent po­lit­i­cal cri­sis is so dire that these seem­ingly far-fetched hy­po­thet­i­cals don’t mat­ter. Per­haps they rep­re­sent bridges the coun­try should cross some­time in the fu­ture.

South Africa is mov­ing into an era in na­tional pol­i­tics where the ANC is not nearly as dom­i­nant. This means that coali­tions will be the or­der of the day. In this new era, one or two votes in a par­lia­men­tary mo­tion may make all the dif­fer­ence. Will the coun­try still think se­cret bal­lots were such a good idea?

Early in June, DA mayor Michael Holen­stein was re­moved by a mo­tion of no con­fi­dence through a se­cret bal­lot in Mo­gale City, west of Jo­han­nes­burg. Both the mo­tion and the se­cret bal­lot were called for by ANC coun­cil­lors. The bal­lot was granted by the ANC-af­fil­i­ated Speaker. The DA and their coali­tion part­ners un­suc­cess­fully op­posed it. As it hap­pened, one of their own be­trayed the coali­tion and led to the mo­tion be­ing car­ried with 39 votes to 38.

This saga il­lus­trates how the di­min­ished ac­count­abil­ity (to both elec­torate and party-po­lit­i­cal peers) af­forded by a se­cret bal­lot opens mo­tions of no con­fi­dence not only to a pol­i­tics of con­science, but also po­ten­tially to one of back­stab­bing and pet­ti­ness. On top of this, gov­er­nance in Mo­gale City is suf­fer­ing as a re­sult of the mo­tion. There are fears that ser­vice de­liv­ery is be­ing paral­ysed and the desta­bilised, hung coun­cil may be put un­der ad­min­is­tra­tion.

The con­se­quences of a mo­tion of no con­fi­dence in the pres­i­dent will, of course, be far more desta­bil­is­ing. For one thing, Sec­tion 102 of the con­sti­tu­tion re­quires the en­tire cabi­net to re­sign along­side the pres­i­dent, should the mo­tion pass.

This might well be prefer­able over an­other day of a patently com­pro­mised, Zuma-led gov­ern­ment. But there is value in en­sur­ing that such a hefty de­ci­sion is made only af­ter due de­lib­er­a­tion and is made openly and with courage of con­vic­tion. If such courage should prove to be lack­ing in the mem­bers of the ma­jor­ity party, should South Africans not be al­lowed to see this and to think, in turn, about the vote that in a con­sti­tu­tional democ­racy can and should mat­ter far more: their own? – The Con­ver­sa­tion Mar­ius Pi­eterse is a Pro­fes­sor of Law at the

Univer­sity of the Wit­wa­ter­srand

‘A se­cret bal­lot would sac­ri­fice MPs’ ac­count­abil­ity.’

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