Zuma may survive even a secret ballot, says professor

If Monday’s Constitutional Court action by the United Democratic Movement (UDM) to force parliament to hold a secret ballot for the motion of no confidence in President Jacob Zuma succeeds, it’s still highly speculative if members of the governing party would actually vote for the motion.

With the ANC holding 249 seats and the sum of all other parties totaling 151 – and considering the recent cabinet reshuffle that will now have a host of new ministers indebted to President Jacob Zuma – the UDM’s hope of a winning vote may be a stretch, according to university of Johannesburg professor Professor Mcebisi Ndletyana.

“Even if there is anonymity, depending on how many of them in parliament who are beneficiaries of the patronage politics that Zuma has cultivated, they might not be swayed by whoever comes after him, so they obviously won’t force him out because Zuma has been benefiting them.

“And then there are those assessing how detrimental the damage that Zuma is inflicting on the country is, especially in terms of the long-term stay of the ANC government. People who especially think they don’t have anything to gain, that their reputations are not tainted and they will continue beyond Zuma, are likely to vote him out,” said Ndletyana.

In his submission to the Constitutional Court, UDM leader General Bantu Holomisa mentioned Zuma’s cabinet reshuffle of 31 March, and then the Standard & Poor’s and Moody’s ratings agencies downgrade of 3 April, and Fitch’s downgrade of 7 April, as factors in the urgency of its application.

“Presently, government debt and private sector debt stands north of R3 trillion,” said Holomisa in his submission.

“The likely effect of the downgrades is that R30 billion per year, or R300 billion over the next 10 years, will now have to be found (mostly by government) and spent on servicing debt, rather than and before applying it to programmes that benefit all the South African people which are almost entirely dependent on government support and spending.”

Surprisingly perhaps, the amended rules of parliament in fact do seem to permit the speaker of parliament to hold a ballot however she pleases, says Wits law professor advocate James Grant.

“Unbelievably, given her stance, you would be misled into thinking there is an issue here, whereas there just isn’t,” said Grant.

“It is actually alarmingly straightforward if you look at rules 103 and 104 of parliament, which clearly contain a discretion and the case the speaker is going to try to rely on preceded the discretion, which has now been written into the rules.”

Independently agreeing with Grant, University of Cape Town law professor Pierre de Vos noted on his blog Constitutionally Speaking that the amended rules of parliament make it clear that Mbete does have the discretion to order a secret ballot.

“The speaker has claimed she does not have a discretion to order a secret ballot. This claim is either deliberately misleading or the result of a lack of intellectual inquisitiveness on the part of the speaker,” writes De Vos.

Grant says a plain reading of the rules gives Mbete all the discretion she needs.

“One can reasonably draw an inference how it is she could possibly be this ignorant of the law or even her advisers. There’s nothing to rewrite, all she has to do is exercise the discretion she has.

“The question is will the Concourt order the speaker to exercise her discretion in a particular way and, in my limited understanding of constitutional law, the court would be loath to do that,” Grant said.

“The court has to be careful not to interfere in politics. However, there is an important issue coming up and the speaker seems to be getting it all wrong. They will want to hear why it is she is coming away with her interpretation.”

The law obliged Mbete to protect members of parliament against intimidation, Grant noted.

De Vos said if the speaker had a duty to protect MPs from threats aimed at compelling them to vote against the motion of no confidence, not allowing a secret ballot – it could be argued – could be in breach of section 8 of the Powers and Privileges Act.

“One could then argue that the speaker has a duty to allow a secret ballot in such a highly charged vote in order to give effect to her legal duty to enforce the provisions of the Powers and Privileges Act,” said De Vos.

“The electronic voting system records the identity and the vote of every MP, which means this method of voting is not by secret ballot. However, the rule clearly empowers the speaker to direct that the system not to be used,” wrote De Vos said on his blog.

“The fact that the speaker has a discretion to determine a different voting system – including one by secret ballot – is underlined by [National Assembly] rule 104 which states that where no electronic voting system is in operation, a manual voting system may be used in accordance with a procedure predetermined by the speaker and directives to be announced by the presiding officer.”

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