Constitutional Court Judge President Mogoeng Mogoeng. Picture: LEBOHANG MASHILOANE
Constitutional Court Judge President Mogoeng Mogoeng. Picture: LEBOHANG MASHILOANE

The United Democratic Movement yesterday told the Constitutional Court why it was compulsory that a vote of no confidence in the president be by secret ballot.

The UDM wants the court to declare that section 102 of the constitution requires that motions of no confidence must be decided by secret ballot.

The section states that, if the National Assembly, by “a vote” supported by a majority of its members, passes a motion of no confidence in the president, the president and other executive members must resign.

The judges of the court expressed concern about the judiciary being seen as intruding on the domain of the legislative arm of the government by telling the speaker of parliament how to conduct the affairs of the House.

However, political parties that support a secret ballot stated that the National Assembly’s oversight of the executive should be served by a secret ballot.

UDM advocate Dali Mpofu said the only question that arose in this case was the meaning of the words “a vote” in section 102 of the constitution: did it imply that a secret ballot was required, permit a secret ballot or prohibit a secret ballot?

Mpofu said the UDM would convince the court that a secret ballot was compulsory.

“This case is not about separation of powers, or encroachment of the court in anything. If our interpretation of section 102 is correct, this was always like that since 1996 when the constitution was enacted.”

The party last month asked for National Assembly Speaker Baleka Mbete to table a motion of no confidence in President Jacob Zuma following his controversial cabinet reshuffle in March, which resulted in the firing of Finance Minister Pravin Gordhan and his deputy, Mcebisi Jonas.

In asking the speaker for the motion of no confidence to be put on April 3, the party said there had already been reports of intimidation of MPs.

When the speaker refused to order the no-confidence vote by secret ballot, the UDM asked the Constitutional Court to order that the vote be by secret ballot.

The judges pointed out to Mpofu that other sections of the constitution, which dealt with citizens’ right to vote and the appointment of the president, specifically mentioned that a vote should be secret. But this was not the case with section 102, they said.

“Could it be that the drafters of the constitution, mindful of the principle of separation of powers, wanted this arm of the state (the legislature) to decide on how they would decide on the motion to be conducted? Could it be that they left it to the National Assembly?” asked Chief Justice Mogoeng Mogoeng.

Advocate for the EFF Tembeka Ngcukaitobi said section 86 of the constitution, which dealt with the appointment of the president by secret ballot, applied with equal force to section 102 (2).
“Any member of parliament may vote on any topic according to his personal conscience.

“The duty of MPs is pronounced in holding the executive accountable, particularly where you are a member of the majority party ...

“What MPs are being asked is to decide the most contentious question: Is this man fit to remain in office?”

Anton Katz, for the Inkatha Freedom Party, said every motion of no confidence should be dealt with by secret ballot.

“It would be absurd to have a secret ballot when it comes to electing a president and not when voting to remove him.”

Four friends of the court, the Council for the Advancement of the Constitution, the Unemployed People’s Movement, the Shosholoza Progressive Movement and the Institute for Security Studies made submissions in support of the political parties.

Zuma and Mbete have asked for the application to be dismissed.

- The Times

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