Vic­tory for con­sti­tu­tional democ­racy

The Star Early Edition - - LETTERS - Prof Ge­orge Devenish

IN AN his­toric and bold judg­ment, South Africa’s high­est court has pro­nounced in un­equiv­o­cal terms that the Speaker of the Na­tional Assem­bly has the con­sti­tu­tional au­thor­ity to pre­scribe a se­cret bal­lot vote for a mo­tion of no con­fi­dence in Pres­i­dent Ja­cob Zuma.

This sem­i­nal judg­ment was scribed by Chief Jus­tice Mo­go­eng Mo­go­eng, who de­liv­ered a unan­i­mous de­ci­sion of the Con­sti­tu­tional Court.

The Speaker, Baleka Mbete, had co­gently ar­gued in her court pa­pers that she did not have any such power to in­sti­tute a se­cret bal­lot for a mo­tion of no con­fi­dence in the pres­i­dent, re­ly­ing on a prece­dent orig­i­nat­ing from the West­ern Cape High Court to the ef­fect of deny­ing such a right.

The Con­sti­tu­tional Court has now ruled dif­fer­ently. With in­sight and elo­quence it ar­gued per­sua­sively that Mbete in­deed had these pow­ers, which it de­clared “be­long to the peo­ple” of South Africa and there­fore ruled that they could not be ex­er­cised in the in­ter­est of the Speaker or the gov­ern­ing party.

Fur­ther­more, it was ex­plained that our con­sti­tu­tion pro­vided no clar­ity on ex­act cir­cum­stances in which a se­cret or open bal­lot was ap­pro­pri­ate, but rather that the Speaker had the au­thor­ity and dis­cre­tion to make such a de­ci­sion.

In his judg­ment, the chief jus­tice de­clared that it “is her judg­ment call to make, hav­ing due re­gard to what would be in the best pro­ce­dure to en­sure that mem­bers (of Par­lia­ment) ex­er­cise their over­sight pow­ers most ef­fec­tively”.

The cru­cial im­por­tance of the se­cret bal­lot was em­pha­sised by the Con­sti­tu­tional Court since it would al­low MPs to ex­er­cise their vote freely. The ANC has al­ways adamantly held that its mem­bers would in no cir­cum­stances be al­lowed to dis­re­gard strict cau­cus dis­ci­pline and vote against the of­fi­cial cau­cus po­si­tion.

How­ever, the court has held that such a dog­matic party-po­lit­i­cal stance is not sup­ported by the con­sti­tu­tion.

This con­sti­tu­tional sen­ti­ment is fur­ther de­vel­oped by the court. .

As in the case with gen­eral elec­tions, where a se­cret bal­lot is deemed nec­es­sary to en­hance the free­ness and fair­ness of the elec­tions, so it is with the elec­tion of the pres­i­dent by the Na­tional Assem­bly.

This al­lows mem­bers to ex­er­cise their vote freely and ef­fec­tively, in ac­cor­dance with the con­science of each, with­out un­due in­flu­ence.

Of great im­por­tance is that the court had scrupu­lously up­held the doc­trine of sep­a­ra­tion of pow­ers by re­ject­ing a re­quest by the United Demo­cratic Front (UDM), to the ef­fect that it de­cides on a date for the se­cret bal­lot.

What it did was to skil­fully remit to the Speaker a man­date to ex­er­cise her dis­cre­tion with a new de­ci­sion.

As part of its com­pre­hen­sive or­ders, the court ruled that the pres­i­dent and Speaker pay the costs of the par­ties such as the UDM that had ini­ti­ated and brought the ap­pli­ca­tion to the court.

This ea­gerly awaited judg­ment of the Con­sti­tu­tional Court is a sin­gu­lar vic­tory for con­sti­tu­tional democ­racy in South Africa and could have im­por­tant con­se­quences for mul­ti­party gov­ern­ment in this coun­try. Dur­ban

(Devenish is an emer­i­tus pro­fes­sor at the Univer­sity of KZN and one of the schol­ars that drafted the in­terim con­sti­tu­tion in 1993.)


SPEAKER’S JOB: The Con­sti­tu­tional Court has ruled that par­lia­men­tary Speaker Baleka Mbete, right, has the au­thor­ity to pre­scribe a se­cret bal­lot for a vote of no con­fi­dence in the pres­i­dent. Pic­ture: Sim­phiwe Mbokazi

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