The dangers of the secret ballot

It happened as many suspected it would. The Constitutional Court ordered that, despite the Constitution’s silence on the matter, the speaker of parliament has the constitutional power to prescribe that a vote on a motion of no confidence in the country’s president may take place by way of a secret ballot.

It also found that Baleka Mbete, the speaker, was mistaken when she decided earlier this year that she did not have this power. The court set aside her decision.

But the court didn’t go as far as the United Democratic Movement, and other opposition parties that had challenged Mbete’s decision, had hoped. It would not force Mbete to order a secret ballot in the upcoming motion of no confidence in President Jacob Zuma. It felt that this would go against the separation of powers, by unduly prescribing to parliament how it should carry out its functions.

Accordingly, the court ordered Mbete to retake the decision on whether to allow the secret ballot. It emphasised that in doing so, she must act rationally. It ordered that she has to take account of all surrounding circumstances, including the possibility that MPs may feel intimidated by their political parties to vote in a particular way.

The court emphasised that parliament has a constitutional obligation to hold the executive to account. Members must therefore act in accordance with their constitutional obligations, their consciences and their oaths of office.

From a constitutional law perspective, the court’s stance is undoubtedly correct. As always, it has shown great respect for parliament’s power to guide its own processes. At the same time, the court has clarified the extent of the speaker’s discretion in a way that aims to ensure that she, and parliament as a whole, exercise their powers in a way that is consistent with their constitutional obligations.

What the opposition asked for was always going to be a long shot. Wanting a court to order the speaker to exercise a discretion that is legitimately hers alone, before she has even applied her mind to the question, would involve a real stretch of the separation of powers.

So, what will Mbete decide? And will her decision, if it was to go against a secret ballot, be challenged? More pertinently, ought it?

Competing notions of accountability

Many believe that a decision not to hold the vote secretly would simply be a thinly veiled attempt to shield Zuma from accountability. Such a decision would therefore, if not irrational and unconstitutional, at least be unconscionable. But, as the Constitutional Court acknowledged, there are different, and perhaps competing, notions of accountability at stake here.

On the one hand, the dominance of the African National Congress (ANC) in parliament and its own internal structures of political accountability have seemingly compromised the constitutionally designed accountability of the executive to parliament. An open ballot could only exacerbate this.

On the other hand, a secret ballot would sacrifice MPs’ accountability not only to their party peers, but also to the country’s citizens.

How can we be assured that an ANC politician who votes differently under a secret ballot than she would under an open one is doing so based on her conscience rather than on some other, less honourable whim? What is to stop a cynical group of Democratic Alliance (DA) opposition politicians from voting in favour of retaining Zuma because they believe that his continued scandal-prone presidency would better serve the their chances in the 2019 election? Would it not make it more difficult for such politicians to subvert the public interest in these ways if the citizenry, and their fellow MPs, could see them?

Perhaps South Africa’s current political crisis is so dire that these seemingly far-fetched hypotheticals don’t matter. Perhaps they represent bridges the country should cross sometime in the future.

But making rules (and rulings), especially for the naughty kid in class, is seldom wise.

South Africa is moving into an era in national politics where the ANC is not nearly as dominant. This means that coalitions will be the order of the day. In this new era, one or two votes in a parliamentary motion may make all the difference. Will the country still think secret ballots were such a good idea?

Danger of destabilisation

Early in June DA mayor Michael Holenstein was removed by a motion of no confidence through a secret ballot in Mogale City, west of Johannesburg. Both the motion and the secret ballot were called for by ANC councillors. The ballot was granted by the ANC-affiliated speaker.

The DA and their coalition partners unsuccessfully opposed the secret ballot. As it happened, the secret ballot provided the opportunity for one of their own to betray the coalition and led to the motion being carried with 39 votes to 38.

Near-comical irony and intrigue aside, this saga illustrates all too vividly how the diminished accountability (to both electorate and party-political peers) afforded by a secret ballot opens motions of no confidence not only to a politics of conscience, but also potentially to one of backstabbing and pettiness.

On top of this, governance in Mogale City is said to be suffering as a result of the successful motion. There are fears that service delivery is being paralysed and that the destabilised, hung council may be put under administration.

The consequences of a motion of no confidence in the president will, of course, be far more destabilising. For one thing, Section 102 of the constitution requires the entire cabinet to resign alongside the president, should the motion pass. A member of parliament deciding how to vote on a motion of no confidence in Zuma is therefore also deciding whether to throw the entire national government into disarray, however temporarily.

This might well be preferable over another day of a patently compromised, Zuma-led government. But there is value in ensuring that such a hefty decision is made only after due deliberation, and is made openly and with courage of conviction. If such courage should prove to be lacking in the members of the majority party, should South Africans not be allowed to see this and to think, in turn, about the vote that in a constitutional democracy can and should matter far more: their own?

Marius Pieterse, Professor of Law, University of the Witwatersrand

This article was originally published on The Conversation. Read the original article.