Back to you, Baleka

Baleka Mbete. Picture: Lisa Hnatowicz
Baleka Mbete. Picture: Lisa Hnatowicz

The Constitutional Court judgment on the application by the United Democratic Movement to direct the speaker of Parliament to organise a secret ballot for motion of no confidence has led to varied interpretations of who won or who lost.

The ANC was quick to claim victory, saying the court would not decide for the speaker, the head of the another arm of state, as to how she exercises her discretion “despite the mischievous and adventurous exercise” of the UDM to force this point.

And they are entitled to that view because the court confirmed that it had been asked to direct the speaker to make all the necessary arrangements to ensure that the motion of no confidence was decided by secret ballot.

The court held that “no legal basis exist for this radical and separation of powers-insensitive move”.

However, the court ordered the president and the speaker the costs of the UDM and the other opposition parties that joined the application.

The biggest victory for the opposition was that the court set aside the speaker’s decision in April that she had no powers to decide on whether or not to grant a secret ballot.

“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,” the court concluded.

The court made it clear that those powers belonged to Parliament and that they were loathe to interfere there.

However, it made it clear that the speaker could not exercise the powers capriciously or on a whim.

She had to show that it was a rational decision, based on clear considerations before her.

The court said where the secret ballot was deemed necessary to enhance the freeness and fairness of the elections, it should be allowed to allow the MPs to exercise their votes freely and effectively.

MPs should be free to vote with their conscience and choose who they truly believed in without fear of reprisals.

The court accepted that there were risks that MPs, particularly those belonging to the governing party could get exposed to when they openly questioned or challenged the suitability of their leaders.

The court counterbalanced that with the need to ensure there was always transparency in the National Assembly because the electorate was entitled to know how their representatives carried out their most sensitive obligations.

It added that MPs were not supposed to always operate under the cover of secrecy.

But ultimately neither the opposition parties nor the ANC know for certain if they have won or lost.

The opposition will have the satisfaction knowing that the speaker cannot run away from making a decision on allowing a secret ballot. She is effectively forced to take a decision either way.

But she may, to their dismay, decide that there are no grounds for a secret ballot.

The EFF was already trying to pre-empt her by warning in a statement on Thursday that they would take a decision to turn down a secret ballot to court for review if she did not have good reasons.

So they are aware that she might snub them.

The speaker is a known ally of President Jacob Zuma, who is the subject of the motion of no confidence.

Politically it makes sense for her to protect Zuma from the unpredictability of a secret motion.

But the Constitutional Court (and the EFF) have already warned her that her position requires impartiality and decisions that can be legally defensible. So we are back to square one.

In the hands of the speaker.

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