Court argument favours Parliament over motion vote
UNITED Democratic Movement (UDM) senior counsel Dali Mpofu came under fire yesterday as Constitutional Court judges inquired whether it was not up to Parliament to determine its own rules, including whether to vote openly or through a secret ballot.
The UDM and others had approached the Constitutional Court for a ruling on whether a vote of no confidence in President Jacob Zuma – to be held in Parliament – should be held in secret.
Justice Chris Jafta asked Mpofu whether those who drafted South Africa’s constitution allowed Parliament to conduct its own business as per the constitution and draft its rules.
“Section 55 says the National Assembly can determine rules and procedures… doesn’t this tell us that the constitution drafters have left that duty to Parliament?” asked Justice Jafta.
The authors of the constitution took into consideration the importance of the rules of Parliament, he added.
Chief Justice Mogoeng Mogoeng interjected.
“All the jurisdictions you have referred to, Parliament has itself determined its rules on how things were going to be done.
“Botswana, Zambia… Germany prescribed their own rules for a secret ballot, not the Constitutional Court,” said Justice Mogoeng.
“It was left to Parliament to decide.”
Mpofu said a decision on a secret ballot in the countries he cited “could have been decided by Parliament or the Speaker.”
The court heard from the representative of Speaker Baleka Mbete that the constitution did not allow that a secret vote on a motion of no confidence on the National Assembly be imposed but only conferred power on it to pass the motion through the secret ballot if it was supported by a majority.
“The power of the National Assembly to make such a decision is derived from Section 57 of the constitution… the Speaker is subject to the decision of the National Assembly, she cannot overwrite NA decisions and order a secret vote for a motion of no confidence against the president,” said senior counsel Marumo Moerane.
He cited rulings by three Western Cape high court judges who held that such a National Assembly procedure was not a requirement according to the constitution.
Justice Mogoeng asked him why general elections were held through secret ballot and not an open vote.
“What do you think is the rationale behind a secret vote in relation to the election of the president?
“Why is it necessary? Why is there no open vote where people gather and raise their hands?” asked Justice Mogoeng.
Pressed for a reply, Moerane said that in his view, such a move was meant to “limit negative influence”.
He added that vulnerable voters may be influenced by those with authority over them, hence a need for country’s elections to be in a form of a secret ballot.
Tembeka Ngcukaitobi, for the EFF, earlier told the Constitutional Court that MPs were entitled to vote secretly and according to their conscience. The application was ultimately about seeing the executive being held accountable, he added.
“Their conduct is up to scrutiny and when they fail in their duties, they’re removed from office. Inside the National Assembly itself, members are entitled to vote through own conscience,” he told the justices.
Ngcukaitobi added that the only way to protect MPs was through the secret vote.
Justice Mogoeng asked him why was seeking relief only for present motion but not for other future members in Parliament, after which Ngcukaitobi conceded and said he “could have forgotten my exact words” but that the outcome would apply to everyone now and in the future.
He slammed Speaker Mbete’s argument that she had no discretion on the secret ballot.
“Rule 103 and 104 says the Speaker must decide a procedure in secret vote for motion of no confidence.
“The section on National Assembly rules confers an obligation on the Speaker.”
The outcome of the secret ballot was not the issue, Ngcukaitobi added.
“We know that the president criticises us, we do not care about the outcome of whether the MPs will decide to retain the president or not during the motion vote… members of the ANC even must be free to decide for themselves.”