Mpumelelo Mkhabela

Why the ConCourt could rule for a secret ballot

2017-04-28 08:59

A secret ballot in the vote of no confidence in Jacob Zuma would be good for all members of Parliament who are tired but scared of the captured and dangerous president.

The success of the case for a secret ballot at the Constitutional Court hinges not so much on the separation of powers, as some observers have argued. Rather, it will more likely depend on the court’s generous interpretation of political rights contained in the Constitution.

There is sufficient jurisprudence on the issue of separation of powers argument. Stripped of all the complications, it boils down to this: the courts do not interfere in the processes or decisions of Parliament and the executive unless authorised by the Constitution. The Constitution authorises the courts to intrude and set aside unlawful and unconstitutional decisions or processes.

The courts have intervened to give effect to political and other rights whenever Parliament, the executive or even political parties and other entities have threatened them. The real question is whether the absence of a secret ballot for a vote of no confidence in the president prevents MPs from performing their constitutional obligations to hold the head of the executive to account.

Since the secret ballot is already used in three stages of the political process, the battle is almost half won. Firstly, all political parties in South Africa use secret ballot to elect their leaders. Not one uses the archaic show of hands. This is obviously to protect hands that might be at the risk of being chopped for voting “incorrectly”. Secondly, the Constitution guarantees a secret vote for all voters in all democratic elections in South Africa – from national to municipal. Thirdly, the voting of the president into office by the National Assembly is done through a secret ballot.

The secret ballot at all these stages is in line with what one believes could be the most important section of the Constitution in the secret ballot matter that is before the court. Section 19 of the Constitution states: “Every citizen is free to make political choices.” These choices, the Constitution states, include the right to stand for public office and to campaign for a political cause.

Members of Parliament are entitled to exercise their political choices freely. Political parties are a conduit but not the limit to the exercise of political choices. The internal processes of political parties, including their constitutions, must be in line with the Constitution of the country.

In Ramakatsa and Others v Magashule and Others, the Constitutional Court made it clear that the Constitution protects the rights of members in a political party. The court said: “It [The Constitution] protects the exercise of the right not only against external interference but also against interference arising from within the party.”

A finding to the effect that the absence of secret ballot poses a risk to the exercise of political choice by MPs who have been threatened with interference “within” the ANC will enhance oversight on the executive. The individual exercise of political choice should be an important consideration for the court because MPs swear individually to be guided by their consciences in performing their duties.

A ruling that supports a secret ballot would empower rather than diminish the power of MPs to do their work effectively. It would not amount to an instruction to vote against Zuma. Whether or not a vote eventually happens is not for the court to decide. But a ruling in favour of giving MPs power to exercise their duties freely without interference would amount to empowerment rather than intrusion.

The courts have empowered Parliament before. In the Robert McBride matter, the Constitutional Court intervened to block attempts by former Police Minister Nathi Nhleko to fire the head of the Independent Police Investigative Directorate. The court gave Parliament the power to decide McBride’s fate. A resurgent Parliament chose not to take any action against the hard-working McBride. Nhleko was left with an extra-large egg splashed on his sweaty face.

In the Nkandla matter, Parliament was criticised by the Constitutional Court for failing to use its powers to fulfil its constitutional obligations to hold the executive to account. Read positively, the Nkandla judgment empowered MPs to do their work.

In another case of parliamentary empowerment, the High Court ruled that the executive acted unlawfully when it sought to withdraw South Africa from the International Criminal Court without parliamentary approval. Only Parliament could approve such a process.

So, the ruling by the court could have political effects before MPs exercise their right to vote in secret. Sometimes political conduct can be shaped not only by the lifting of the stick, but by its mere presence. The secret ballot could be that stick that stands ready to whip a delinquent president into line.

- Mpumelelo Mkhabela is a fellow at the Centre for the Study of Governance Innovation (GovInn) at the University of Pretoria.

* Changes were made to this column after initial publication.

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. 

Read more on:    constitutional court  |  secret ballot
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