What’s different from the last time the Con Court said “no” to a secret vote against Zuma

Political analysts and opposition parties argue that president Jacob Zuma’s sixth motion of no confidence vote since 2014, may have a different outcome  – provided ANC MPs are allowed to vote in a secret ballot.

Last week the Constitutional Court confirmed that it would accept the the United Democratic Movement’s (UDM) direct application for a ruling for the secret ballot despite objections by both the speaker of Parliament, Baleka Mbete and president Zuma himself, on the grounds that nowhere in current legislation does it allow for ballots to be “secret”.

On Tuesday, EFF leader Julius Malema joined the fray, claiming in an affidavit that the decision to vote is a contested one in which there is no unanimity even within the ANC.

Section 86(2) of the Constitution “specifically obliges a secret ballot in the event of two or more candidates being nominated”.

“There is no unanimity on whether Zuma should remain as president or not. It is a highly contested question. It is thus a scenario comparable to that envisaged in a contested election of the president,” Malema’s court papers said.

The UDM’s application serves as both form of appeal and clarification noted Constitutional law expert Loamni Wolf, in a column for the Daily Maverick.

Citing  the case of Masethla v The PresidentWolf said that while the Constitutional Court has previously provided  guidance on how to deal with the termination of a public office, the dismissal procedure is either not regulated at all or not regulated in detail.

While the law surrounding the issue will need to be clarified and further developed, arguably the more important fact is whether this application will overturn the more recent decision of Tlouamma v Mbete, Speaker of the National Assembly, which directly tackled the issue of a secret ballot, said Wolf.

In that decision the Constitutional Court ruled against a secret ballot on the grounds that not only was there no basis for such secrecy (as held by Mbete and Zuma) but also that the absence of such a rule was likely a deliberate exclusion from lawmakers.

What’s changed?

In an analysis for Legalbrief, Pam Saxby noted that while the UDM were making a similar application to that of Tlouamma, there were a number of new factors the court would have to consider that could overturn the decision.

This includes claims by the UDM that MPs are experiencing intimidation and threats that undermine their constitutional oath to hold the government accountable without a secret ballot. In addition, the UDM argues that the rules of the National Assembly gives the speaker of Parliament a discretion on the question of whether to use a secret ballot.

In making these considerations Saxby also directly referenced an article by Eusebius Mckaiser for the Mail and Guardian, in which not only does he raise the above points but notes that the UDM now has a much stronger case in law.

He noted that the Constitutional Court now has a responsibility to cut through the politics surrounding the issue and make a decision founded in law based on these threats and the discretion of the speaker.

Will it make a difference if the Con Court says no?

While numerous reports have surfaced that indicate ANC MPs will face harsh punishment for not toeing the party-line, this is purely posturing according to Advocate Jeremy Gauntlett writing for the Sunday Times.

Gauntlett highlighted section 42 (3) of the Constitution, which emphasises that the function of the National Assembly is ‘to ensure government by the people under the Constitution’. In addition to the questionable legality of depriving MPs of their livelihoods for Zuma, Gauntllet also pointed to sections 83 and 89 of the Constitution and the duty these MPs have to uphold this Constitution.

He argued then that ANC MPs had no excuse to “vote with their conscious” and say to Zuma, “you have sat here too long”.

The motion of no confidence was set to be debated on Tuesday, April 18 however, it was postponed following a request from the DA. All court documents must now be filed by Friday before a decision is taken on a way forward.

Read: Public Protector must probe Eskom’s ‘golden handshake’ to Molefe

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What’s different from the last time the Con Court said “no” to a secret vote against Zuma