Baleka Mbete. Picture: TREVOR SAMSON
Baleka Mbete. Picture: TREVOR SAMSON

The Constitutional Court’s finding on the secret ballot issue is one of those decisions that could be construed as a victory for the United Democratic Movement (UDM) and other opposition parties, or for the ANC. And both have won, but the question now concerns the consequences.

The sequence of events was that the UDM asked for a secret ballot in the vote of no confidence in President Jacob Zuma. Parliamentary Speaker Baleka Mbete replied that she had no power to make such a decision. The court found that, in fact, she did.

So the finding is a victory for the UDM in a technical sense, but what the UDM and the opposition parties really wanted — and what they asked for in the alternative — is a ruling that would have forced the ANC to hold a secret ballot.

The hope was that this would facilitate a sufficient number of ANC MPs to vote with the opposition to remove the president. But the court did not go that far, which could be construed as a victory for the ANC. The only problem is that the ball is now back in Mbete’s court.

The court did provide some guidance to Mbete in making the decision, but was careful not to prescribe and provided arguments in both directions

Chief Justice Mogoeng Mogoeng made a virtue of the Constitution’s silence on the issue, saying this omission effectively meant the issue could be decided either way.

"Whether the proceedings are to be by secret ballot is a power that rests firmly in the hands of the speaker, but exercisable subject to crucial factors that are appropriately seasoned with considerations of rationality," he said. "This court cannot assume that she will not act in line with the legal position and conditionalities as now clarified by this court."

The halfway-house decision of the Constitutional Court in some senses reflects indecision on the topic among South Africans in general.

On the one hand, the pertinent question is this: do we as citizens really not want to know how our MPs vote?

On the other hand, the argument in favour of a secret ballot in a no-confidence debate is a pragmatic one.

This kind of vote is comparable to one in which employees are asked to decide whether or not to vote against their employer.

The secret ballot is aimed at protecting parliamentarians against being ousted by their parties, which in the past have shown a shockingly vindictive streak.

The court did provide some guidance to Mbete in making the decision, but was careful not to prescribe and provided arguments in both directions.

The electorate "was at times entitled to know how their representatives carry out even some of their most sensitive obligations, such as passing a motion of no confidence", it said. "Considerations of transparency and openness sometimes demand a display of courage and the resoluteness to boldly advance the best interests of those they represent no matter the consequences, including the risk of dismissal for non-compliance with the party."

On the other hand, it pointed out that legal representatives for the ANC and the speaker’s office did say during argu-ment that they were not in principle averse to the idea of a secret ballot.

Though interesting, the issue may be moot because it appears that even the opponents of Zuma are now resolved to not vote against the president. ANC secretary-general Gwede Mantashe said "no army in the world allows soldiers to be commanded by an enemy general", suggesting that while the president has opponents, even they would not want to damage the party by ousting him in a no-confidence debate.

Hence, it is likely that Zuma will survive again, amazingly what will be his eighth no-confidence vote.

But nobody should be under any illusions that the battle has therefore ended.

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