Eight hours after the hearing began, gasps filled the Constitutional Court as Marumo Moerane, counsel for National Assembly Speaker Baleka Mbete, came under fire from Chief Justice Mogoeng Mogoeng. Moerane argued that secret ballots can only be introduced if the majority of the National Assembly agrees and that the Speaker is bound by past decisions, limiting her discretion.
Chief Justice Mogoeng cited a National Assembly rule that features a situation where MPs’ votes might not be publicised when voting manually. Do the rules provide for a secret ballot? “It appears so,” Moerane backtracked. Does the Speaker have discretion to hold a secret ballot? “It appears so.” Must the Speaker then act within the rules, act independently and hold a secret ballot? “I accept that,” Moerane conceded.
Moerane’s concession was a win for those pushing for the motion of no confidence against President Jacob Zuma to be conducted by secret ballot. Through the hearings, which lasted until 20:00, the ConCourt justices appeared increasingly confident that Mbete and the National Assembly have the legal discretion to institute a secret ballot. But judgment was reserved and it’s unclear how far the court will go.
Publicly, the case has been criticised as an example of the judiciary encroaching on the powers of the legislature. “This case is not about the separation of powers. Nor is it about the so-called encroachment of the courts into anything,” said Dali Mpofu, acting for the United Democratic Movement, which brought the case to court. He said the court should have jurisdiction over the matter because Mbete had abdicated her obligations and previous judgments on no-confidence motions meant the ConCourt had to handle this one.
The crux of Mpofu’s argument was this. Public elections are held in secret to protect the voter from outside influences. When there is more than one candidate for president in the National Assembly, the Constitution says a secret ballot should be conducted. Why then should MPs vote openly when removing a president, which could carry risks for those who vote against him and potentially fail?
“Does the president continue to enjoy the confidence of the majority of Members of Parliament?” asked Mpofu. “We bring this secret ballot to ensure the answer that we get has integrity,” he said. “Here is the antidote to all these ills.”
The court repeatedly questioned why the Constitution allowed a secret vote in situations when two people are nominated in the National Assembly for president, but it didn’t provide for the same when removing a president. Is a secret ballot within the spirit of the Constitution? Perhaps it was not an oversight but deliberate, seeing the drafters of the Constitution included secret ballots elsewhere.
“This case is ultimately about overseeing executive actions,” argued Tembeka Ngcukaitobi, representing the EFF. He argued that MPs’ primary duty is to the electorate and Constitution and MPs should be in a no-confidence vote to act on their consciences. Questioned on whether secret ballots would fit within the aim to provide transparent governance, he said it should be applied in limited cases.
Justice Mogoeng asked about the consequences of not using a secret ballot and the risks it might bring. “It’s humiliating. It’s painful,” he said regarding the consequences of a president losing his job. “It’s the worst thing that you can wish for your enemy, for want of a better phrase. So why then is it permissible and not required?” Permissible and required were watchwords – should no-confidence motions be required to be conducted in secret or should there just be an allowance for it?
Anton Katz, acting for the IFP, took a strong stance. He said the party had been pushing for secret ballots for years but had been ignored by various speakers of the house. He said every no-confidence motion must be held in secret. Flipping the separation of powers argument, he said the National Assembly needs to be empowered. “It’s implicated at the heart of this case and the heart of this case is how is the National Assembly to oversee the executive?”
“Every Member of Parliament should have a free vote to vote according to the Constitution, according to what the Constitution demands,” said Katz. Justice Mogoeng asked how far this should go. Should the courts now intervene on other issues regarding the executive or legislature?
“Whatever we do, we must know that Parliament has its own powers, its own responsibility,” cautioned Justice Mogoeng.
Opposition party supporters marched to the court in the morning and the DA’s Mmusi Maimane and EFF’s Julius Malema addressed the crowd during the lunch break. Maimane berated the president and called for further action.
Luzelle Adams for Cope told the court MPs are tied to political parties and their party lines, but there must be a common ground found between that and their oversight role. She said that balance is the secret ballot when it comes to no-confidence motions. She noted Zuma’s 2009 election in the National Assembly, which was conducted through a secret ballot, where 69 MPs didn’t vote. Why should this be any different?
But the question lingered: Why did the drafters of the Constitution leave out the right to go to a secret ballot when removing a president? One argument said they left it to Parliament’s rule-makers, but they have not created a rule in line with the Constitution and the court should order the National Assembly to do so.
Justice Mogoeng offered an alternative. “You could actually bring the country to something worse than junk status. Why should you hide now?” he asked on the consequences of removing a president. There are little grounds required to bring a no-confidence motion and he said maybe those who draw up the Constitution wanted to ensure openness. “Could it be that the drafters of the Constitution left secret ballot in relation to removal because you need to be serious enough to do it because of the consequences?”
Moerane, representing Mbete, claimed the case shouldn’t even be entertained by the country’s highest court and that secret ballots can only be introduced through the rules of the National Assembly, as they haven’t been made a rule and previous judgments have ruled the courts cannot intervene. He said Mbete’s hands were tied. “Our submission is there is no such obligation flowing from the Constitution.”
He said the assumption that MPs are spineless and won’t vote with their hearts in an open ballot should be questioned. He struggled to respond to the risks such MPs might face and he couldn’t answer more detailed questions on procedures around rules in the National Assembly. When he finally appeared to admit Mbete has the discretion and obligation at times to institute a secret ballot, opposition members in the audience watched his capitulation with shock.
Ishmael Semenya, representing Zuma, was more convincing, but like all who spoke throughout the day, he also came under strident scrutiny. He disputed the idea that MPs will face risks for participating in an open vote. If so, they should go through procedures in the National Assembly and if they fail, approach the courts. A secret ballot cannot be assumed to be the only avenue to hold the executive to account, he said, while no evidence has been presented to compromise the process of an open vote. “We don’t know what risk we’re talking about in the first place. At least I don’t.”
Justice Edwin Cameron grilled him on his claim MPs can change the system from within. Dissenting MPs, or those facing risks, would have to tackle the same processes which support the incumbent leader, and the same party majority system that includes inherent setbacks to holding the executive to account, while limiting MPs from fulfilling constitutional obligations. It’s a circle that limits accountability and one the court may decide to challenge.
UDM leader Bantu Holomisa said there’s no doubt in his mind his party has been vindicated for saying Mbete has the discretion to institute a secret ballot regarding the motion of no confidence. EFF’s Malema said, “We are confident the court will rule in our favour.”
Justice Mogoeng’s closing remarks, however, pointed to how complicated the issues are. On Monday, the justices looked like they were leaning towards agreeing that the National Assembly Speaker has the discretion to use the secret ballot, but how far will they go? They might throw the issue back to Mbete and allow her to make the ultimate choice, while encouraging a secret ballot. Or, they could listen to calls to make the option of a secret ballot mandatory for all no-confidence motions, as that’s the only constitutional finding. That, however, would bring in allegations of judicial overreach.
The momentum around the no-confidence motion has slowed due to the court hearing, but if the court pushes the National Assembly to hold a secret vote, Zuma’s future will be determined by the number of ANC MPs who use the opportunity to express their conscience to get rid of the president.