In reading the ConCourt's judgment, Chief Justice Mogoeng argued that conscience enabled MPs to uphold the interests of the electorate in the best way possible.
‘Amandla
(ng)awethu, maanda ndiashu, maatla ke a rona or matimba ya hina (power belongs to us) and mayibuye iAfrika (restore Africa and its wealth) are more than just mere excitement-generating slogans,” Chief Justice Mogoeng Mogoeng said in the introductory remarks of his landmark judgment on Thursday.
The chief justice invoked these emotive slogans, which had historically animated the cause of freedom, to lay the basis for a ruling that affirmed the dominion of the citizenry over the Republic.
He not only resolved parliamentary Speaker Baleka Mbete’s dilemma over whether she could allow a secret ballot on a motion of no confidence in President Jacob Zuma, but also dispelled anxieties sparked by deliberation on issues that could trample on the separation of powers.
In an insightful, yet simple contention, Chief Justice Mogoeng has brilliantly pointed out that the said anxiety arises from an erroneous focus on the form instead of the essence.
Democracy is essentially undergirded on the principle that citizens elect representatives, who then govern not only their behalf, but also in pursuit of their interests. Democracy, therefore, is people-centred.
The institutional and legislative infrastructure is merely an actualisation of this fundamental principle: the people shall govern! All three spheres of government - Parliament, the executive and the judiciary - are individually constituted and relate in a manner that bring this sacred principle to life.
In answering the question, such as the one that the Constitutional Court confronted, the approach should not be to fuss over the separation of powers per se.
Rather, the premise should be the electorate, guided by the question: how do these spheres of government best uphold the sovereignty of the electorate? Which of the three spheres does what is then guided by the preoccupation with the primacy of the citizenry. In other words, the performance of each sphere of government is evaluated upon the extent to which it advances the people’s power.
This means that their value is not inherent, but relational. That is why they are held accountable, constantly evaluated and face censure in the instance of failure in executing their mandates.
Parliament is evaluated by voters, who then pass their judgment through elections on whether or not elected officials do their job efficiently.
Part of that job involves exercising oversight over the executive to make sure that it does what its meant to do.
Where there is a dispute between the two spheres of government, the judiciary is called upon to adjudicate. While unelected, as Chief Justice Mogoeng admits, judges are nonetheless appointed on merit by public representatives with specific responsibilities to execute. Where they are found wanting, judges and magistrates are removed from the bench.
What Chief Justice Mogoeng’s ruling underlines, therefore, is that the executive is not being singled out for unfair scrutiny.
The two other arms of government are subject to a similar level of probing, albeit in different ways and are liable to being penalised, where necessary. The idea is to avoid complacency, but ensure that each organ performs optimally.
That is what the Constitutional Court was required to do: how best to strengthen the role of Parliament to enforce accountability over the executive. The motion of no confidence was always present, but rendered mute by open voting. Individual MPs, as the United Democratic Movement (UDM) submitted to the court, could not vote based on their conscience, but followed the party’s dictate due to fear of reprisals.
If allowed to vote secretly, MPs were likely to defy the party by voting for the removal of Zuma. The court was persuaded by the argument that the voting procedure should facilitate the expression of individual conscience. Conscience, Chief Justice Mogoeng argued, enabled MPs to uphold the interests of the electorate in the best way possible.
They simply do what is expected of them by the constitution, to which they have pledged allegiance.
Where MPs are forced to choose the party line over constitutional prescripts they are bound to flounder in their responsibility towards the people.
This is because the party does not always act in the public interest. That is what happened in the case of Nkandla, and the Constitutional Court found to that effect.
The secret ballot, therefore, enhances the effectiveness of the motion of no confidence as the ultimate mechanism to enforce accountability.
This is partly in recognition of the inherent danger entailed in MPs voting openly against their president.
There are reprisals for going against the president. That is why Pravin Gordhan and Mcebisi Jonas were fired as minister and deputy minister respectively.
Makhosi Khoza, the contrarian ANC MP, has been threatened with violence for saying that she will follow her conscience when voting on the motion.
Barring a secret ballot in the motion of no confidence, therefore, is akin to stifling Parliament in the exercise of its duties. It gives the president carte blanche to act as he pleases without any consequences. Absent a secret ballot, we have a political system with a veneer of accountability, but ultimately it compromises the interests of its electorate. Its democratic credentials are highly questionable.
This is what the Constitutional Court has now remedied. It has enabled us to become a wholesome democratic self.
Even more impressive is the elegance with which the court rectified our democratic deficit. Contrary to what some had feared, the chief justice did not impugn the integrity of Parliament.
He did not prescribe what Parliament ought to do in its own business, nor make up what is not allowed by the constitution. He has simply enlightened the Speaker of Parliament that she can, actually, conduct the voting secretly on the motion of no confidence.
That the constitution is silent on the matter, does not imply prohibition. It simply left it to Parliament to determine as and when to apply the secret voting procedure.
Now it is up to Mbete to decide if she will allow the secret ballot on this particular motion. And, the chief justice reminds us in his judgment that Mbete had said she was not opposed to a secret ballot. She just was not sure if she could allow it.
That is why he, perhaps with a whiff of sarcasm, said: “It would thus be most inappropriate to order the Speaker to have the motion of no confidence in the president conducted by secret ballot, as if she ever said that she would not do so even if she had the power to do so and circumstances plainly cry out for it.”
It will be highly surprising, therefore, if Mbete refuses the procedure, after expressing herself in support it.
She will certainly come under pressure from some in her party not to allow secret voting.
Zuma has already expressed himself against the secret ballot. He wants voting to be done openly, the same way it has been done. He appears to fear the outcome of a secret ballot.
Mbete has no choice, but to allow for a secret ballot. She cannot just decline, without providing rational reasons.
The threats of violence that have been issued against some ANC MPs make for a more persuasive case for a secret ballot.
If she decides against a secret ballot, the opposition parties will certainly win on appeal because her reasons are most likely to be irrational.
The Constitutional Court is itching to rule against an executive that has gone rogue in order to enforce accountability.
* Ndletyana is an associate professor of politics at the University of Johannesburg.
** The views expressed here are not necessarily those of Independent Media.