Guest Column

A secret vote of no confidence is a call for dishonesty

2017-04-19 10:54

Paul Ngobeni

There is a clash happening in the Constitutional Court and the streets of Cape Town and Pretoria and it has nothing to do with the President Zuma’s fitness for office or the Constitution.

Fuelled by an intense disingenuous debate over the need for our MPs to break ranks and vote with their “conscience” in the impending motion of no confidence against President Zuma, the partisan political fight received a boost when former President Thabo Mbeki penned an editorial in which he poignantly asks “whether the ANC MPs can vote against their own Party President‚ given the normal and standard assumption that Members of Political Parties must respect all decisions adopted legitimately by their Parties”.

Mbeki makes an alarmingly false statement that there “… is absolutely no MP who sits in Parliament by virtue of being elected by the Political Party to which they might belong‚ including those who subsequently get elected by Parliament to serve as Head of State and Government.”

Unfortunately, Mbeki does not answer the question he posed– he overlooks pertinent Concourt judgment and indulges in a meandering rehash of the Concourt’s Nkandla judgment without answering the question of what the Constitution requires and what the voters and all our political parties expect from their public representatives in Parliament and other legislative bodies.

All political parties accept that in our system of democracy political parties occupy the centre stage and play a vital part in facilitating the exercise of political rights. This fact is affirmed by Section 1 of the Constitution which proclaims that, “[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness” are some of the values on which our state is founded. 

A cursory review of the constitutions of the Democratic Alliance and that of the ruling party reveal that their MPs are not free agents with a roving mandate to disregard their deployment contract and vote according to their conscience as Mbeki suggested. The DA regards the breaking of ranks or voting with its enemies as nothing less than a capital offence that automatically leads to expulsion of “cessation of membership". That is spelt out in Section 3.5 of the DA's constitution, which provides:

3.5.1 A member ceases to be a member of the Party when he or she:

3.5.1.1.1 being a public representative of the Party in a legislative body, in any meeting of that legislative body, votes in a manner other than in accordance with a Party caucus decision which is consistent with Party policy, in that legislative body, or being a single public representative in a caucus votes in a manner inconsistent with the instructions of higher Party structures or Party policy: save in the case where the Party allows a free vote on the issue being voted on, or the caucus has given permission for that member to vote in a particular manner;

The DA accepts that strict discipline or a Stalinist grip on its deployees in Parliament is not an aberration; it is necessary to ensure that its MPs vote in accordance with the dictates of the Party caucus and in a manner consistent with the “instructions of higher party structures.”

Strict party discipline is also enshrined in COPE’s constitution. It is inconceivable that the dictatorial Lekota would brook any dissent or breaking of ranks by party MPs deployed in Parliament.

The principle of strict party discipline is also enshrined in the ANC’s own constitution. Section 5.4 states the duties of ANC members who hold elective office in any sphere of governance at national, provincial or local level – “are required to be members of the appropriate caucus, to function within its rules and to abide by its decisions under the general provisions of this Constitution and the constitutional structures of the ANC”.

Those supporting the DA in a vote of no confidence against an ANC president know beyond any shadow of doubt that they are attempting what no DA member can ever do with impunity – a DA member who supports a vote of no confidence against a fellow DA member faces automatic expulsion and loss of membership. But ANC members are being urged by former presidents and so-called “alliance partners” to violate the ANC constitution simply to get at Zuma.

The Concourt has already spoken in Ramakatsa case. There, Moseneke, then deputy chief justice said:

65. In the main, elections are contested by political parties. It is these parties which determine lists of candidates who get elected to legislative bodies… success for political parties in elections lies in the policies they adopt and put forward as a plan for addressing challenges and problems facing communities. Participation in the activities of a political party is critical to attaining all of this.

66. Public resources are directed at political parties for the very reason that they are the veritable vehicles the Constitution has chosen for facilitating and entrenching democracy.

67. Our democracy is founded on a multi-party system of government ... This means a person who intends to vote in national or provincial elections must vote for a political party registered for the purpose of contesting the elections and not for a candidate.

It is the registered party that nominates candidates for the election on regional and national party lists. The Constitution itself obliges every citizen to exercise the franchise through a political party. Therefore political parties are indispensible conduits for the enjoyment of the right given by section 19(3)(a) to vote in elections.

It is incongruous and absurd to argue that MPs may exploit their parties the same way a pimp exploits a prostitute, that is to utilise a party’s resources to contest elections, accept deployment in accordance with the candidate list developed by the party and once in Parliament ditch the party’s caucus instructions under the guise of voting according to one’s “conscience”.

MPs who develop pangs of conscience in this fashion must simply do the honourable thing and resign instead of pimping off the efforts of a party they belatedly seek to undermine.

Ironically, the push for a secret ballot now before the Concourt is nothing more than a call for the court to legalise dishonest and duplicitous conduct by MPs who lack the courage of their convictions.

Voters who voted in national elections were obliged to “vote for a political party registered for the purpose of contesting the elections and not for a candidate”. It is the registered party that nominated candidates for the election on regional and national party lists. The Constitution itself obliges every citizen to exercise the franchise through a political party. The party and the voters are entitled to know the performance and voting behaviour of the elected MPs.

Our Concourt will be well advised to observe proper limits of the judicial function in these politically charged and highly contested cases. It must not undermine one of the essential features of our democracy: the separation of powers. Parliament must be free to carry out its functions without interference. 

To this extent it must be allowed to “determine and control its internal arrangements proceedings and procedures”. Indeed, the parliamentary process would be paralysed if Parliament were to spend its time defending its legislative process in the courts. 

Parliament, as the legislative arm of government, is surely best placed to decide upon the framework for the conduct of its own business. Secret ballot cannot be imposed upon the MPs for the parliamentary representatives to participate in the key processes of producing legislation in their capacity as representatives of the people. 

The principle of representative government is weakened and ultimately denied if parliamentary representatives are allowed to keep their votes secret and thereby deny the voters the right to scrutinise and evaluate their conduct.

The Concourt is now being asked to allow persons elected to Parliament through this process to hide their votes from both the party that nominated them and the voters who elected them. That must be rejected as it surely undermines the principle of “accountability, responsiveness and openness” undergirding our Constitution.

- Paul Ngobeni is a legal commentator.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24. 

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