Secret ballot in no confidence vote against Zuma up to Mbete to decide
The Constitutional Court says there is nothing in the Constitution prohibiting or prescribing a secret ballot in the motion of no confidence against President Zuma – so it is up to the National Assembly to determine how it wants to vote.
In its unanimous ruling released on Thursday (22 June), the court said that the Constitution does not explicitly prohibit or make provision for a motion of no confidence to take place through secret ballot.
Chief Justice Mogoeng Mogoeng said that sections in the Constitution are expressly clear on how voting should take place – procedure for election of President is by a secret ballot, for example – but regarding his removal, the Constitution is silent.
“The absence…means it neither prohibits or prescribes how the vote should take place – it leaves it open for the National Assembly to decide how best to go about holding the executive accountable,” Mogoeng said.
Further, the rules of Parliament empowers the National Speaker to allow for secret ballot in a no confidence vote. “It’s her judgment call to make,” the chief justice said.
Mogoeng said that the core of the no confidence issue is holding the executive to account. However, he acknowledged that the ruling party has great influence on or dictates who gets appointed to Parliament – thus MPs who support such a motion could face prejudicial consequences.
MPs take an oath to uphold the Constitution, not their party line – but they face real consequences for stepping outside that line. This, along with other issues like vote buying, need to be kept in mind when determining whether a vote needs to be secret or not.
It must be ensured that the vote is not a fear, or money-motivated sham, he said, it needs to be dealt with as a proper accountability channel. The voting method should always serve the purpose of the exercise.
For example, the general elections are held by secret ballot to ensure that they are free and fair. Depending on the circumstances, a motion of no confidence is left open to be either open or closed.
Opposition by Mbete and Zuma
The court had originally agreed to hear the secret ballot case brought by the UDM who argued that when the president is elected by Parliament, it was done in secret, and that there should be nothing stopping the removal of a president being handled in the same way.
It also claimed the ANC MPs were being intimidated and threatened with losing their jobs to force them to vote against the motion and that a secret ballot would allow for a true reflection without the fear of violence.
In responding submissions to the case, both president Jacob Zuma and speaker of the National Assembly Baleka Mbete said that the question of the secret ballot was not for the Constitutional Court to decide.
Mbete submitted that while she was not personally opposed to a secret vote, she must uphold the rules of the National Assembly, which does not give her the power to order a secret ballot.
Mbete criticised the UDM’s application to the Constitutional Court saying it worked against the country’s separation of powers, and that the party should have approached the Parliamentary Rules Committee.
This is a key argument that was struck down in the Court’s ruling. The chief justice said her view on the matter was mistaken and her submission was invalid and set aside.
Zuma’s submission was more direct, saying that UDM itself has admitted that there is no Constitutional mandate for the vote to be made in secret, and so is not competent.
The president also said that claims made by the UDM that MPs were being threatened or intimidated were not supported by any evidence and were unfounded.
However, in arguing the case, Zuma’s legal team conceded that a secret ballot would ultimately not be detrimental to the president, and also that the Constitution did not explicitly prohibit a secret ballot.
The president and Mbete were ordered to pay costs.
Read: Zuma: I can’t correct my mistakes if no one tells me what I did wrong
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