United Democratic Movement v Speaker of the National Assembly and Others (continued)

2017-06-22 13:18
(Genevieve Quintal, News24)

(Genevieve Quintal, News24)

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[53] Section 52 of the Constitution provides:

“Speaker and Deputy Speaker
(1) At the first sitting after its election, or when necessary to fill a vacancy, the National Assembly must elect a Speaker and a Deputy Speaker from among its members.
. . .
(3) The procedure set out in Part A of Schedule 3 applies to the election of the Speaker and the Deputy Speaker.
(4) The National Assembly may remove the Speaker or Deputy Speaker from office by resolution.  A majority of the members of the Assembly must be present when the resolution is adopted.
(5) In terms of its rules and orders, the National Assembly may elect from among its members other presiding officers to assist the Speaker and the Deputy Speaker.”

[54] This section is about the election of the Speaker and Deputy Speaker at the first sitting of the Assembly and whenever the need arises to do so.  Focusing on voting, which is central to this application, it is required in three different instances.  First, when the Speaker or Deputy is being elected.  Second, implicitly when a resolution for the removal of the Speaker or Deputy Speaker is to be adopted.  Third, when other presiding officers are being elected.

[55] No procedure is spelt out for the removal process.  Similarly, the election of other presiding officers in terms of subsection 5 is simply required to take place in terms of the Rules and Orders of the Assembly but the voting mechanism is not expressly provided for.  Section 52(3) does however prescribe the voting procedure set out in Part A of Schedule 3 for the election of the Speaker and Deputy.  Similarly, section 86 of the Constitution prescribes the voting procedure in Part A of Schedule 3.  This section provides for the election of the President as follows:

“(1) At its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or a man from among its members to be the President.
(2) . . . . The procedure set out in Part A of Schedule 3 applies to the election of the President.”

[56] The relevant part of the Part A of Schedule 3 voting procedure reads:

“Part A Election Procedures for Constitutional Office Bearers
Application
1. The procedure set out in this Schedule applies whenever—
(a) the National Assembly meets to elect the President, or the Speaker or Deputy Speaker of the Assembly;
(b) the National Council of Provinces meets to elect its Chairperson or a Deputy Chairperson; or
(c) a provincial legislature meets to elect the Premier of the province or the Speaker or Deputy Speaker of the legislature.
. . .
Election procedure
6. If more than one candidate is nominated—
(a) a vote must be taken at the meeting by secret ballot;
(b) each member present, or if it is a meeting of the National Council of Provinces, each province represented, at the meeting may cast one vote; and
(c) the person presiding must declare elected the candidate who receives a majority of the votes.”

The election of the President and other constitutional office-bearers requires an ordinary majority of Members present and a secret ballot.

[57] Several important observations emerge from these sections that provide for voting.  The procedure to be followed for the election of the President and several constitutional office-bearers has been specifically provided for.  It is voting by secret ballot and whoever secures a majority of votes is to be declared elected.  As regards the removal from office either through an impeachment  or a motion of no confidence,  the Constitution is silent on the procedure.

[58] The Constitution could have provided for a vote by secret ballot or an open ballot.  It did neither.  Why did the Constitution leave the procedure open?  Section 57(1) provides the answer:

“The National Assembly may—

(a) determine and control its internal arrangements, proceedings and procedures; and
(b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.”

[59] To pass a motion of no confidence in the President requires a vote supported by a majority of National Assembly Members.  Absent an expression of choice by the Constitution, the National Assembly is at large to exercise its section 57(1) powers to decide on the appropriate voting procedure in terms of which to decide the motion.  And the choice lies between an open or secret ballot.  The National Assembly therefore has the power to determine whether voting on a motion of no confidence would be by open ballot or secret ballot.  The purpose for leaving the voting procedure open could only have been for the Assembly itself to determine, in terms of its section 57 powers, what would best advance our constitutional vision or project.

[60] Both possibilities of an open or secret ballot are constitutionally permissible.  Otherwise, if Members always had to vote openly and in obedience to enforceable party instructions, provision would not have been made for a secret ballot when the President, Speaker, Chairperson of the National Council of Provinces and their Deputies are elected.   And the Constitution would have made it clear that voting would always be by open ballot.

[61] If the will of political parties were to always prevail, the Constitution would probably have required political parties to determine which way they want to vote on issues and through their Chief Whips signify support or opposition by submitting the list of Members who would be present when voting takes place.  But, because it is individual Members who really have to vote, provisions are couched in the language that recognises the possibility of majorities supporting the removal of the President and the Speaker.  Conceptually, those majorities could only be possible if Members of the ruling party are also at liberty to vote in a way that does not always have to be predetermined by their parties.  And this of course assumes that the ruling party would generally be opposed to the removal of their own.

[62] Additionally, constitutions of comparable democracies prescribe a vote by secret ballot only for the general elections, the election of the President, the equivalent of the Speaker and her counterpart in the second House.  As for the voting procedure to be followed for removal from office, no provision has been made. 

[63] What these legislative bodies have, however, done is to provide for a secret ballot either in legislation or their rules of procedure.   They did so because, just as our Parliament has the power to determine its procedures in terms of section 57, they have the power to decide whether the removal process ought to be by an open or secret ballot.  Attempts to find any comparable constitutional democracy where a court of law has prescribed the removal voting procedure for the legislature drew a blank.  Understandably so, because considerations of separation of powers demand an ever abiding consciousness of the constitutionally-sanctioned division of labour among the arms and a refrain from impermissible intrusions.

[64] It bears emphasis that the absence of a prior determination of the voting procedure by our Constitution for a motion of no confidence means that it neither prohibits nor prescribes an open ballot or a secret ballot.  The effect of this is to leave it open to the National Assembly, when the time comes to vote on that motion, to decide on the appropriate voting procedure.  This can only reinforce the conclusion that the Assembly has the power to make that determination.  It is for it to decide on the voting procedure necessary for the efficiency and effectiveness of the institution in holding the Executive accountable.  In sum, how best and in terms of which voting procedure to hold the President accountable in the particular instance is the responsibility constitutionally-allocated to the National Assembly.

[65] The Assembly has made rules in terms of its section 57 powers.  Those rules make provision for the determination of the voting procedure for a motion of no confidence tabled at a particular time.  Rule 102 says that “[u]nless the Constitution provides otherwise, voting takes place in accordance with Rules 103 or 104”.  Rule 103 provides:

“(1) At a sitting of the House held in a Chamber where an electronic voting system is in operation, unless the presiding officer directs otherwise, questions are decided by the utilisation of such system in accordance with a procedure predetermined by the Speaker and directives as announced by the presiding officer.
(2) Members may vote only from the seats allocated to them individually in the Chamber.
(3) Members vote by pressing the ‘Yes’, ‘No’ or ‘Abstain’ button on the electronic consoles at their seats when directed by the presiding officer to cast their votes.
(4) A member who is unable to cast his or her vote, must draw this to the attention of the Chair and may in person or through a whip of his or her party inform the Secretary at the Table of his or her vote.
(5) When all members have cast their votes, the presiding officer must immediately announce the result of the division.
(6) Members’ names and votes must be printed in the Minutes of Proceedings.”

[66] And rule 104 reads:

“(1) Where no electronic voting system is in operation, a manual voting system may be used in accordance with a procedure predetermined by the Speaker and directives to be announced by the presiding officer.
(2) When members’ votes have been counted, the presiding officer must immediately announce the result of the division.
(3) If the manual voting procedure permits, members’ names and votes must be printed in the Minutes of Proceedings.”

[67] These rules provide for a voting system and procedure that allows for details of a Member and how she voted to be known.  So known that the Minutes of Proceedings would be able to capture the names and the exact vote of each Member.  But, read together, sub-rules (1) and (3) of rule 104 empower the Speaker to predetermine a manual voting system that may not permit a recordal or disclosure of the names and votes of Members.  That is an indiscriminate manual secret ballot procedure.  Indiscriminate because it is not limited to the election of the President, Speaker or Deputy Speaker.  It is not incident specific and must thus apply just as well to any incident of voting for which the Speaker may prescribe a secret ballot including the removal of the President.  The National Assembly has, through its Rules, in effect empowered the Speaker to decide how a particular motion of no confidence in the President is to be conducted.

[68] In sum, rule 104(1) and (3) empowers the Speaker to have even a motion of no confidence in the President voted on by secret ballot.  But, when a secret ballot would be appropriate, is an eventuality that has not been expressly provided for and which then falls on the Speaker to determine.  That is her judgement call to make, having due regard to what would be the best procedure to ensure that Members exercise their oversight powers most effectively.  And that is something she may “predetermine” as envisaged in rule 104(1).

[69] Our decision that the power to prescribe the voting procedure in a motion of no confidence reposes in the Speaker, accords with the dictates of separation of powers.  It affirms the functional independence of Parliament to freely exercise its section 57 powers.

The exercise of the power to determine the procedure
[70] The proper exercise of the power to prescribe a voting procedure in a motion of no confidence proceedings would partly depend on why the Constitution prescribes a secret ballot for the general elections and a contested election of the President and the Speaker.

[71] Beginning with European electoral instruments, article 5 of its Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States provides:

“The Parties hereto proceed from the assumption that observance of the principle of secret balloting means exclusion of any control over voters’ expression of will, provision for equal conditions for free choice.” 

[72] In Botswana Democratic Party the Court of Appeal of the Republic of Botswana noted that the secret ballot voting system in Parliament—

“is rather an arrangement put in place by the National Assembly for the effective exercise of the Members’ right to vote without outside influence or coercion which could render the right an empty one.” 

And this was also explained by the Supreme Court of Zimbabwe in these terms:

“The legislature chose the secret ballot for its optimum benefits . . . . The prescription of a secret ballot as the method for the election of the Speaker [by members of the legislature] is based on the acceptance of the principle that it promotes and protects freedom of expression of choice of a preferred candidate without undue influence, intimidation and fear of disapproval by others.” 

[73] As is the case with general elections where a secret ballot is deemed necessary to enhance the freeness and fairness of the elections, so it is with the election of the President by the National Assembly.  This allows Members to exercise their vote freely and effectively, in accordance with the conscience of each, without undue influence, intimidation or fear of disapproval by others.

[74] The frustration or disappointment of the losing presidential hopeful and his or her supporters could conceivably have a wide range of prejudicial consequences for Members who are known to have contributed to the loss.  To allow Members of the National Assembly to vote with their conscience and choose who they truly believe to be the best presidential material for our country, without any fear of reprisals, a secret ballot has been identified as the best voting mechanism.

[75]      Conversely, a Member of Parliament could be exposed to a range of reasonably foreseeable prejudicial consequences when called upon to pronounce through a vote on the President’s accountability or continued suitability for the highest office.  But of course that potential risk would also depend on the motivation for the motion of no confidence.  Is it on grounds that impugn competence, faithfulness to the Republic or commitment to upholding constitutional obligations or on some fairly innocuous or less divisive or less sensitive grounds?

[76]      The appropriateness of a voting procedure for that motion is particularly important since our electoral system is structured in such a way that it is, broadly speaking, a party but not a Member of Parliament that gets voted into Parliament.  A political party virtually determines who goes to Parliament  and who is no longer allowed to represent it in Parliament.   Members’ fate or future in office depends largely on the party.  The Deputy President, Ministers and Deputy Ministers who are also Members of Parliament, are presidential appointees.  The ruling party has a great influence on, or dictates, who gets appointed or elected as senior office-bearers in Parliament.  Almost invariably the President – although not a Member of Parliament – is the leader of the ruling party.   It would be quite surprising if the senior office bearers in Parliament were not appointed or elected with a significant input by the President and other senior party officials.  There are therefore institutional and other risks that Members, particularly of any ruling party, are likely to get exposed to when they openly question or challenge the suitability of their leader(s) for the position of President.  I say leaders advisedly because the logical trend has been to give the highest positions in governance structures to most senior leaders.

[77]      In the Certification case, this Court addressed the conflict that arises from some Members’ continued membership of the National Assembly, after their appointment to Cabinet:

“An objection was taken to various provisions of the [New Text] that are said to violate [Chapter] VI.  This [Chapter] reads:

‘There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.’

The principal objection is directed at the provisions of the [New Text] which provide for members of executive government also to be members of legislatures at all three levels of government.  It was further submitted that this failure to effect full separation of powers enhances the power of executive government (particularly in the case of the President and provincial Premier), thereby undercutting the representative basis of the democratic order.

. . .

It was also contended that the requirements of accountability and responsiveness in [Chapter] VI were breached.  The argument was that legislators would have to obey the instructions of the party leadership even if the party concerned had unequivocally abandoned its electoral manifesto and directed its [Members of Parliament] to vote, speak and act against the policies expressed in that manifesto; or if the party imposed the whip in relation to a policy which legislators sincerely and reasonably believed to be wrong.  The end result, so it was further submitted, would amount to a subversion of the accountability and responsiveness of legislators to the electorate.  We do not agree.  Under a list system of proportional representation, it is parties that the electorate votes for, and parties which must be accountable to the electorate.  A party which abandons its manifesto in a way not accepted by the electorate would probably lose at the next election.  In such a system an anti-defection clause is not inappropriate to ensure that the will of the electorate is honoured.  An individual member remains free to follow the dictates of personal conscience.  This is not inconsistent with democracy.”

[78]      The most effective extra-parliamentary mechanism for holding the people’s elected representatives accountable, is a general election.  It is in this context that this Court said “it is parties that the electorate vote for and parties which must be accountable to the electorate”.  Also, that a party’s unacceptable abandonment of its manifesto is likely to result in electoral defeat.  A factor that is relevant to the Speaker’s decision-making in relation to a democratically-permissible voting procedure is that “an individual member remains free to follow the dictates of personal conscience”.

[79]      Central to the freedom “to follow the dictates of personal conscience” is the oath of office.  Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws.   Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our constitutional scheme.  Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.  This is so not only because they were elected through their parties to represent the people, but also to enable the people to govern through them, in terms of the Constitution.  The requirement that their names be submitted to the Electoral Commission before the elections is crucial.   The people vote for a particular party knowing in advance which candidates are on that party’s list and whether they can trust them.

[80]      When the risk that inheres in voting in defiance of the instructions of one’s party is evaluated, it must be counter-balanced with the apparent difficulty of being removed from the Assembly. Openness is one of our foundational values. And the Assembly’s internal arrangements, proceedings and procedures must have due regard to the need to uphold the value of transparency in carrying out the business of the Assembly. The electorate is at times entitled to know how their representatives carry out even some of their most sensitive obligations, such as passing a motion of no confidence.  They are not supposed to always operate under the cover of secrecy.  Considerations of transparency and openness sometimes demand a display of courage and the resoluteness to boldly advance the best interests of those they represent no matter the consequences, including the risk of dismissal for non-compliance with the party’s instructions.  These factors must also be reflected upon by the Speaker when considering whether voting is to be by secret or open ballot.

[81]      Some consequences are adverse or injurious not so much to individuals, as they are to our constitutional democracy.  Crass dishonesty, in the form of bribe-taking or other illegitimate methods of gaining undeserved majorities, must not be discounted from the Speaker’s decision-making process. Anybody, including Members of Parliament or of the Judiciary anywhere in the world, could potentially be “bought”. When that happens in a motion of no confidence, the outcome could betray the people’s best interests.  This possibility must not be lightly or naively taken out of the equation as a necessarily far removed and negligible possibility when the stakes are too high. For, when money or oiled hands determine the voting outcome, particularly in a matter of such monumental importance, then no conscience or oath finds expression.

[82]      The correct exercise of Parliament’s powers in relation to a motion of no confidence in the President, must therefore have the effect of ensuring that the voting process is not a fear or money-inspired sham but a genuine motion for the effective enforcement of accountability.  When that is so, the distant but real possibility of being removed from office for good reason would serve the original and essential purpose of encouraging public office-bearers to be accountable and fulfil their constitutional obligations.

[83]      Each Member must, depending on the grounds and circumstances of the motion, be able to do what would in reality advance our constitutional project of improving the lives of all citizens, freeing their potential and generally ensuring accountability for the way things are done in their name and purportedly for their benefit.  So, the centrality of accountability, good governance and the effectiveness of mechanisms created to effectuate this objective, must enjoy proper recognition in the determination of the appropriate voting procedure for a particular motion of no confidence in the President.  That voting procedure is situation-specific.  Some motions of no confidence might require a secret ballot but others not, depending on a conspectus of circumstances that ought reasonably and legitimately to dictate the appropriate procedure to follow in a particular situation.

[84]      What then is to be done to safeguard the responsibility of Members of Parliament to vote according to their conscience when it is necessary to enforce accountability effectively and properly, without undermining the need to let them toe the party line when it is undoubtedly appropriate to do so?  A way must be found to draw a line between allowing voting according to Members’ true conscience and the important responsibilities or obligations Members have to their parties, which would at times be in conflict.

[85]      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.  It is neither for the benefit of the Speaker nor his or her party.  This power must be exercised to achieve the purpose of a motion of no confidence which is primarily about guaranteeing the effectiveness of regular mechanisms.  The purpose of that motion is also to enhance the enforcement of accountability by allowing Members of Parliament as representatives of the people to express and act firmly on their dissatisfaction about the Executive’s performance in-between general elections.  It is fundamentally for the advancement of good governance through quality service delivery, accountability, the strengthening of our democracy and the realisation of the aspirations of the people of South Africa.  The exercise of the power to determine the voting procedure must thus always be geared at achieving the purpose for which that power exists.  The procedure in terms of which the voting right is allowed to be exercised must brighten and enhance the prospects of the purpose for which it was given being better served or advanced.

[86]      More importantly, the power that vests in the Speaker to determine the voting procedure in a motion of no confidence, belongs to the people and must thus not be exercised arbitrarily or whimsically.  Nor is it open-ended and unguided.  It is exercisable subject to constraints.  The primary constraint being that it must be used for the purpose it was given to the Speaker – facilitation of the effectiveness of Parliament’s accountability mechanisms.  Other constraints include the need to allow Members to honour their constitutional obligations, regard being had to their sworn faithfulness to the Republic and irrevocable commitment to do what the Constitution and the laws require of them, for the common good of all South Africans.

[87]      The Speaker is chosen from amongst Members of the National Assembly.   That gives rise to the same responsibility to balance party interests with those of the people.  It is as difficult and onerous a dual responsibility as it is for Members, perhaps even more so, given the independence and impartiality the position requires.  But Parliament’s efficacy in its constitutional oversight of the Executive vitally depends on the Speaker’s proper exercise of this enormous responsibility.  The Speaker must thus ensure that his or her decision strengthens that particular tenet of our democracy and does not undermine it.

[88]      There must always be a proper and rational basis for whatever choice the Speaker makes in the exercise of the constitutional power to determine the voting procedure.  Due regard must always be had to real possibilities of corruption as well as the prevailing circumstances and whether they allow Members to exercise their vote in a manner that does not expose them to illegitimate hardships.  Whether the prevailing atmosphere is generally peaceful or toxified and highly charged, is one of the important aspects of that decision-making process.

Conclusion

[89]      In conclusion, when approached by the UDM to have the motion of no confidence in the President voted on by secret ballot, the Speaker said that neither the Constitution nor the Rules of the National Assembly allow her to authorise a vote by secret ballot.  To this extent she was mistaken.  The only real constraint that stood in her way was the Tlouamma decision.

[90]      Our interpretation of the relevant provisions of the Constitution and the rules makes it clear that the Speaker does have the power to authorise a vote by a secret ballot in motion of no confidence proceedings against the President, in appropriate circumstances.  The exercise of that power must be duly guided by the need to enable effective accountability, what is in the best interests of the people and obedience to the Constitution.

[91]      To the extent that Tlouamma might have been understood to have held that a secret ballot procedure is not at all constitutionally permissible, that understanding is incorrect.  The Speaker’s decision was invalid and must be set aside.

Remedy

[92]      This Court has been asked to direct the Speaker “to make all the necessary arrangements to ensure that the motion of no confidence . . . is decided by secret ballot, including designating a new date for the motion to be debated”.  But no legal basis exists for that radical and separation of powers-insensitive move.  The Speaker has made it abundantly clear that she is not averse to a motion of no confidence in the President being decided upon by a secret ballot.  She only lamented the perceived constitutional and regulatory reality that she lacked the power to authorise voting by secret ballot.  Meaning, now that it has been explained that she has the power to do that which she is not averse to, she has the properly-guided latitude to prescribe what she considers to be the appropriate voting procedure in the circumstances.

[93]      It may be necessary to add that her counsel reiterated during the hearing that the Speaker is not really opposed to a secret ballot.  The President’s counsel also said that the Constitution neither requires nor prohibits but in reality permits a secret ballot.  He went on to say a secret ballot does not necessarily hold adverse consequences for the President.  It would thus be most inappropriate to order the Speaker to have the motion of no confidence in the President conducted by secret ballot, as if she ever said that she would not do so even if she had the power to do so and circumstances plainly cry out for it.  To order a secret ballot would trench separation of powers.

[94]      Whether the proceedings are to be by secret ballot is a power that rests firmly in the hands of the Speaker, but exercisable subject to crucial factors that are appropriately seasoned with considerations of rationality.  This Court cannot assume that she will not act in line with the legal position and conditionalities as now clarified by this Court.  No legal or proper basis exists for that.

[95]      The Speaker’s decision that she lacks the constitutional power to prescribe a secret ballot in a motion of no confidence in the President is to be set aside.  The UDM’s prayer for the order that prescribes a secret ballot as the voting procedure will be referred back to the Speaker to decide.

Costs

[96]      All parties to this application have recorded success against the Speaker and the President.  The unsuccessful parties are therefore to pay the costs of the applicant and all other participating respondents.

Order

[97]      In the result the following order is made:

1.         The United Democratic Movement is granted direct access.

2.         It is declared that the Speaker of the National Assembly has the constitutional power to prescribe that voting in a motion of no confidence in the President of the Republic of South Africa be conducted by secret ballot.

3.         The Speaker’s decision of 6 April 2017 that she does not have the power to prescribe that voting in the motion of no confidence in the President be conducted by secret ballot is set aside.

4.         The United Democratic Movement’s request for a motion of no confidence in the President to be decided by secret ballot is remitted to the Speaker for her to make a fresh decision.

5.         The Speaker and the President must pay the costs of the United Democratic Movement, the Economic Freedom Fighters, the Inkatha Freedom Party and the Congress of the People, including costs of two counsel where applicable.

 

 

 

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