Historic judgement on secret ballot, Professor George Devenish
In June 2017 South Africa was in the midst of a political crisis as former President Jacob Zuma tightened his grip on power. At the time Professor George Devenish reflected on the separation of powers and how the Constitution was written to protect the nation from an intimidating leadership. The column was inspired by a Concourt battle between the Speaker and opposition parties over whether or not she had the authority to allow a secret ballot vote of no confidence in the president.
In an historic and bold judgment, South Africa’s highest court has pronounced in unequivocal terms that the Speaker of the National Assembly has the constitutional authority to prescribe a secret ballot vote for a motion of no confidence in the President, Jacob Zuma.
This seminal judgment was scribed by the Chief Justice, Mogoeng Mogoeng, who delivered a unanimous and succinct decision of the Constitutional Court.
The Speaker, Baleka Mbete had cogent argued in her court papers that she did not have any such power to institute a secret ballot for a motion of no confidence in the president, relying on a precedent originating with the Western Cape High Court to the effect of denying right.
The Constitutional Court has now ruled differently. With insight and eloquence it argued persuasively that indeed Mbete has these powers, which it declared ‘belong to the people’ of South Africa, and therefore of great significance they cannot be exercised in the interest of the Speaker or governing party. Furthermore, it was explained that our Constitution provided no clarity on exactly what circumstances a secret or open ballot is appropriate, but rather that the Speaker has the authority and discretion to make such a decision.
Quoting from his judgment the Chief Justice declared that it “is her judgment call to make, having due regard to what would be in the best procedure to ensure that members [of Parliament] exercise their oversight powers most effectively”.
The crucial importance of the secret ballot was emphasised by the Constitutional Court since it would allow MPs to exercise their vote freely. The ANC has always adamantly held that its members would in no circumstances be allowed to disregard strict caucus discipline and vote against the official caucus position. However, the Court has held that such a dogmatic party political stance is not supported by the Constitution.
This constitutional sentiment is further developed by the Court in the following words:
As in 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…
The Court had scrupulously upheld the doctrine of separation of powers by rejecting a request by the United Democratic Front (UDM), to the effect that it decide on a date for the secret ballot. What it did was to skilfully remit to the Speaker to exercise her discretion a fresh decision.
As part of its comprehensive orders, the Court ruled that the President and Speaker must pay the costs of the parties such as the UDM who had initiated and brought the application to the Court.
This eagerly awaited judgment of the Constitutional Court is a singular victory for constitutional democracy in South Africa and is likely to have important political consequence for our system of multi-party government.