Victory for constitutional democracy
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.)
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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