Decision was the only rational choice for speaker
The recent secret ballot case decided by the Constitutional Court highlights several tensions intrinsic in the design of SA’s constitutional democracy.
The most contentious of these is the dual responsibility of MPs as representatives of the electorate and, simultaneously, their political parties.
In the judgment, the Constitutional Court confirms that the speaker of the National Assembly has the power to authorise a secret ballot in the vote of no confidence in the president. More importantly, the judgment sets out a number of factors that the speaker must take into account when making that decision.
One of these is Baleka Mbete’s impartiality, since she is also the chairwoman of the ANC, of which President Jacob Zuma is the leader. This highlights the dual responsibility not only of the speaker but of all MPs, who essentially serve two masters: the people and their parties.
Section 42(3) of the Constitution states that the “National Assembly is elected to represent the people and to ensure government by the people under the Constitution”.
Giving effect to the requirements of the Constitution means that the concerns and the will of the people should be the deciding factors when the speaker and MPs are charged with making important national decisions.
The voters’ designated messengers or servants run their constitutional errands for the common good of all South Africans.
Implicit in this is a deepseated concern regarding the effectiveness of Parliament’s constitutionally prescribed accountability-enforcing mechanisms. What sense would there be in having MPs if their mandate was to solely uphold the constitutions of their parties?
The court stressed that the power to decide whether a motion of no confidence is to be resolved through an open or secret ballot cannot be used illegitimately or in a manner that has no regard for the surrounding circumstances that ought to inform its exercise.
That power is neither for the benefit of the speaker nor her party. The purpose of the motion of no confidence is to enhance the enforcement of accountability by allowing MPs, as representatives of the people, to express and act firmly on their dissatisfaction about the executive’s performance in between general elections.
This raises the question: can a Parliament composed of MPs who toe the party line truly fulfil its paramount obligation of exercising oversight and holding the executive accountable?
As explained by the court, the speaker is chosen from members of the National Assembly, which means he or she has to balance party interests with those of the people. This is as difficult and onerous a dual responsibility as it is for MPs, perhaps even more so, given the independence and impartiality that the position requires.
Parliament’s efficacy in its constitutional oversight of the executive depends on the speaker’s proper exercise of this enormous responsibility. This balancing act is almost impossible, because Mbete, as the chairwoman of the governing party, is also bound by the the ANC’s constitution in the same manner that all MPs are bound by two constitutions.
However, which constitution takes precedence? As the supreme law of the land, the Constitution takes precedence, as it does, for example, in matters of religious freedom.
The Constitutional Court has held that believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. Similarly, MPs and the speaker cannot be exempted from their constitutional responsibilities by their party obligations. Toeing the party line essentially elevates a party’s constitution above the country’s Constitution.
Other factors the court has prescribed for the speaker’s consideration when deciding whether to authorise a secret ballot are: whether the prevailing circumstances are peaceful, or toxified and potentially hazardous; and whether the voting procedure would allow MPs to vote according to their conscience and in the furtherance of the best interests of the people.
If we apply these factors to the public remarks by representatives of the governing party regarding the fate of those who do not toe the party line, it is clear that the only legally rational decision available to Mbete is the authorisation of a secret ballot.
Historically, it was understood that parliamentarians sat in their own right and were answerable primarily to their constituencies, which meant that the legislature was an effective check on the executive. By design, the purpose of Parliament was to hold the administration to account. Toeing the party line requires MPs to conform to their party’s ideology, and insistence on conformity, prevents MPs from doing their most important job — constraining the executive.
Membership of any organisation conveys a message that the person is in agreement with its ideologies, policies and legislation it hopes to mandate.
Yet, there are issues that will not enjoy unanimity by all members and toeing the party line means that debate, which is the essence of SA’s constitutional democracy, is stifled.
These difficulties are a result of our chosen electoral system, which Pierre de Vos has pointed out means that MPs in the National Assembly or members of other legislatures run the risk of becoming mere conduits to implement instructions handed down by unelected party leaders.
If this happens, real power decisively shifts from the democratically elected legislature towards the unelected leadership of the majority party.
The country’s current electoral system means that people vote for a political party of their choice, which decides who will appear on its electoral lists, and thus, who will represent the party in Parliament. With the governing party’s elective conference coming up later this year and the contentions of who should appear on its lists, perhaps it is time to revisit the electoral system and debate its suitability for a maturing democracy.
The extreme opposite of SA’s system is the candidate-centred US model, where individual politicians are, in effect, almost solely responsible for raising their own funds and getting themselves elected and, once in office, they are under no particular obligation to follow their party’s policy line.
It is acknowledged that for SA to carry out its transformation agenda, MPs need to implement and champion party positions, but there must be limits to ensure that public debate on matters of national importance takes place and that MPs are primarily the representatives of the people.
The US model may be unrealistic for SA’s democracy, but it is time to seriously investigate a middle ground that can facilitate a stronger link between the electorate and its representatives in Parliament, transformation of our country and accountability of the executive. Anything short of this is surely unconstitutional.