Thapelo Lekabe
Digital Journalist
3 minute read
22 Jun 2017
12:36 pm

#SecretBallot judgment: what you need to know

Thapelo Lekabe

The chief justice says MPs are required to swear allegiance to the country and its constitution, not their political parties.

The Constitutional Court.

The Constitutional Court has ruled in a unanimous judgment that National Assembly speaker Baleka Mbete has the power to order a vote of no confidence in President Jacob Zuma by way of a secret ballot.

The application was lodged by the United Democratic Movement (UDM) in April after Zuma’s controversial midnight Cabinet reshuffle on March 30, which saw Pravin Gordhan and Mcebisi Jonas fired from the finance ministry and the country subsequently downgraded to junk status by two global credit-ratings agencies.

Mbete had rejected the UDM’s request for a secret ballot, and argued in her submissions before the ConCourt that there were no provisions in the constitution and the rules of parliament that gave her authority to hold the vote covertly. She said it would be up to MPs to decide on that.

“She was mistaken – our interpretation of the relevant provisions of the constitution and the rules make it clear that the speaker does have the power to authorise a vote by a secret ballot in a motion of no confidence proceedings against the president in inappropriate circumstances,” chief justice Mogoeng Mogoeng on Thursday said.

“The exercise of that power must be dually guided by the need to enable effective accountability, which is in the best interests of the people and obedience to the constitution.”

Mogoeng said Mbete’s decision was therefore invalid, and must be set aside. He said the speaker herself said she was not opposed to the vote being conducted through a secret ballot.

The chief justice ordered Mbete “to make all the necessary arrangements to ensure a motion of no confidence is decided by secret ballot, including designating a new date for the motion to be debated”.

The African Christian Democratic Party, African People’s Convention, Cope, DA and the EFF and IFP supported the application, as well as several civil society organisations.

Here are the key points from the judgment:

  • The secret ballot case was about executive accountability, and parliament had a constitutional responsibility to hold the executive accountable.
  • The chief justice pointed to the specific roles played by the three arms of the state: the executive, parliament and judiciary.
  • He said the powers assigned to each arm of government did not belong to the office bearers who occupied them, adding that the president was an essential actor in the functioning of the country’s democracy.
  • Mogoeng said it would be a violation of the separation-of-powers doctrine if the Constitutional Court ordered the speaker to conduct the vote by way of a secret ballot.
  • He also said there was a “deep-seated concern about just how effective parliament accountability mechanisms are” in the country.
  • Mogoeng stressed that MPs may face real consequences for going against the party line and be exposed to a range of prejudicial consequences for voting in favour of the motion.
  • He said the governing party had a great influence on who got appointed to positions of power in parliament and government.
  • MPs were required to swear allegiance to the country and the constitution, not their political parties, Mogoeng said.
  • Zuma and Mbete were ordered by the ConCourt to pay costs of  the secret ballot case to the UDM, EFF and Cope.

ANC secretary-general Gwede Mantashe previously said if the party’s MPs voted with the opposition parties, it would be the highest level of ill-discipline and betrayal.

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