Mogoeng: secret ballot up to Mbete
• Constitution and country come before party • MPs can follow their consciences, says judge
The law did not provide for MPs to swear allegiance to political parties. Rather, members were required to put the country and the Constitution first, Chief Justice Mogoeng Mogoeng said in his judgment in the secret ballot case brought by the United Democratic Movement.
Mogoeng ordered Speaker Baleka Mbete to use her discretion on deciding whether the ballot should be secret or not and schooled her on the manner in which that decision should be arrived at.
Opposition parties are convinced that a secret ballot would allow ANC MPs to vote with their conscience in a motion of no confidence against the president, without fear of reprisals from their party.
The judgment contrasts with the views of the ANC, which argues that MPs have to toe the party line. The ANC caucus in Parliament came out on Thursday to reiterate that none of its MPs would vote against the ANC president, whether the vote was secret or not. The DA has written to Mbete requesting the no-confidence debate be scheduled at the “earliest available opportunity”.
Mbete is in a precarious position as she harbours presidential ambitions and the ANC will elect Jacob Zuma’s successor in December. But she risks being hauled back to court by opposition parties should she opt for an open ballot.
Mogoeng’s judgment was a poignant reminder to both MPs and the speaker of their responsibilities under the law and the Constitution. It emphasised the responsibilities and obligations of the government and of Parliament towards the citizens of the country.
“A factor that is relevant to the speaker’s decision making in relation to a democratically permissible voting procedure is that ‘an individual member remains free to follow the dictate of personal conscience’,” Mogoeng said. Central to this freedom was the oath of office, in which MPs swore faithfulness to “the republic and obedience to the Constitution and laws”.
“Nowhere does the supreme law provide for them to swear
allegiance to their political parties, important players though they are in our constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.”
At the same time openness was a foundational value and the electorate was entitled to know how they their representatives carried out their obligations.
Openness and transparency should be further factors influencing her decision.
The correct exercise of her power must also ensure that the voting process is not “a fear- or money-inspired sham” but a “genuine motion for the effective enforcement of accountability”.
“Crass dishonesty, in the form of bribe taking or other illegitimate methods of gaining undeserved majorities, must not be discounted from the speaker’s decision-making process,” Mogoeng said.
Mbete had to balance allowing MPs to vote according to their “true conscience” and their obligations to their parties.
The power vested in the speaker to choose whether a secret or open ballot should be held “belongs to the people” and should not be exercised “arbitrarily or whimsically” and there had to be a “rational basis” for her choice.
A Zuma ally, the Umkhonto We Sizwe Military Veterans Association on Thursday expressed concern that the judgment sought to “goad” Mbete to a certain conclusion.