Ralph Mathekga

Constitution will sink motion of no confidence

2017-05-15 08:38

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As the debate regarding how ANC MPs should vote in the forthcoming motion of no confidence in President Jacob Zuma rages on, I stumbled upon an old research paper about South Africa’s experience with constitutions and the role of Parliament in ensuring accountability.  

What is interesting about the impending motion against Zuma is that the Constitutional Court has been approached to decide whether MPs should be allowed to vote using a secret ballot. The view is that ANC MPs are so scared of the president and his crew that the only way those MPs will be able to vote freely is if they can vote secretly.

The UDM consequently went to the highest court in the land to request that the court orders a secret ballot just to protect these MPs from ANC bullies. While we wait for the court to tell the opposition to go back and nicely request the bullies to stop intimidating ANC MPs, it is important to look at this question beyond President Jacob Zuma by reflecting on our constitutional development.

The process of constitutional development is an interesting one and South Africa’s experience in this regard dates back to the 1909 Constitution, which provided for the Union of South Africa under the King of Britain. As a nation however, we prefer to assess our constitutional development by focusing only on the post-apartheid constitutions; the 1993 Interim Constitution and the 1996 Constitution.

We omit the other three constitutions that were adopted prior to the democratic dispensation in South Africa. Those are the 1909 Constitution, the 1961 Constitution, and the 1983 Constitution.

These constitutions respectively passed through them a distinct tradition regarding how the executive had to relate to Parliament when it comes to accountability. This tradition, which shows how the executive subdued Parliament, was also passed into the post-apartheid constitutions; despite the fact that our democratic constitutions provided for the separation of powers and constitutional supremacy.

Looking at those old constitutions of South Africa, it is clear that a tradition of executive supremacy was passed from one constitution to another in the form of rules and practices. Back in 1909 when the King of England used to run the show in South Africa, the 1909 Constitution allowed for the king to be a member of Parliament, which he could also dissolve. As the head of government the king could not meaningfully be brought to account by Parliament. Both the 1961 and the 1983 constitutions of South Africa also allowed for the head of the executive, the president, to be part of Parliament.

It was only in the post-apartheid constitutions (the 1993 and the 1996 constitutions) that the legislative authority was vested in Parliament and the state president was not allowed to remain a member of Parliament once elected president. 

However, the post-apartheid constitutions does allow for members of Cabinet to also vote in Parliament. Thus, effectively members of Cabinet do not lose their membership to Parliament after being appointed. This is odd in the sense that members of Cabinet can actually vote on a motion of no confidence; a motion that would impact their positions as Cabinet ministers.

Even more interesting about the forthcoming motion is the submission in court by President Jacob Zuma that the court ought not to prescribe to Parliament on how to handle the motion. As the head of the executive, Zuma’s submission is at odds with the principle of separation of powers, even if he is trying to tell the court not to venture onto the legislature’s terrain.

Some have pointed to our electoral system as being responsible for the poor level of accountability and the jellyfish-attitude shown by ANC MPs when it comes to holding the executive to account. The mere fact that our democratic Constitution does not disallow members of Cabinet to participate in the motion as MPs is an indication that the problem has to do with the tradition that has been passed from one constitution to another, dating far back.

The old constitutions show that South Africa always had a strong tradition of executive supremacy where Parliament has been dominated by the executive, including the state president. This is part of our constitutional development, and it is a feature that continues to be present in our democratic Constitution. President Jacob Zuma’s own executive indulgence makes thing worse; however executive indulgence is a tradition that has always been part and parcel of constitutional development in the country. 

The framers of our democratic Constitution made good strides in shifting South Africa away from the tradition of executive dominance. However, the rules and practices in Parliament and some of the provisions in the very Constitution show that the tradition of executive dominance is well entrenched in our political system as shown across different types of regimes in the country going as far back, as I will further show in my subsequent articles on the subject.

There are many reasons as to why the motion of no confidence will likely remain the motion of no consequence. Some of those reasons have nothing to do with ANC MPs or the electoral system. It is rather a matter of tradition that has remained in the country for more than hundred years. 

- Ralph Mathekga is an independent political analyst and author of the book When Zuma Goes. He writes a weekly column for News24.

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:    constitution  |  no confidence vote
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