The Concourt could decide that, as the constitution provides for secret ballot when electing the president it therefore should also remove the president by secret ballot, writes Zelna Jansen.
Parliament has become the epitome of political interactions. And rightly so, as it is where elected representatives of the people, ie Members of Parliament, from various political parties gather to make laws and conduct oversight over the executive. In doing so, parliament must also be alert to involving the public in its processes.
A motion of no confidence in the president was scheduled to take place on April 18. However, as the matter of whether the Speaker may agree to a secret ballot for this vote will be adjudicated in the Constitutional Court, the motion has been postponed until the Concourt makes its finding.
From media reports, the Concourt will decide as to whether it can make an order declaring the motion of no confidence must be by secret ballot. It is argued that the constitution expressly requires that a secret ballot must be used when the president is elected and, by analogy, the same procedure must be followed when the president is removed by resolution in the National Assembly.
It is further mooted that MPs’ first duty is to the constitution and not any political party.
Once again, the issue of separation of powers comes into play. This issue was robustly discussed in Tlouamma v Speaker of the National Assembly of the Parliament (2015). In this case, the Western Cape High Court had to decide on whether it is within the judiciary’s ambit to make an order declaring that a vote on a motion of no confidence in the president must be by secret ballot.
The court concluded that it was not within the judiciary’s ambit to make such an order. In coming to its conclusion, the high court made some interesting comments about its role as the judiciary, parliament and caution about the judiciary being drawn into political battles.
The high court in Tlouamma notes that the doctrine of separation of powers originates from constitutional Principle VI of the Interim constitution of 1993 which provided that: “There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness”.
In our constitutional democracy, the constitution is the supreme law. The separation of powers is premised on the principle that each branch of government is independent, has a separate function and unique powers that the others cannot infringe upon.
The doctrine therefore recognises the functional independence of the three branches of government, namely, the legislature, the executive and the judiciary. In other words, it recognises that there is a division of tasks between those institutions which make the law, those which implement the law and those which enforce the law. One should not usurp the functions and responsibilities of the other. The three branches are not entirely separate from each other and exhibit a degree of overlap.
Section 172 of the constitution grants the judiciary the power to scrutinise the conduct of the other two branches of government and declare any law or conduct inconsistent with the constitution invalid. Judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of power among the three branches of government.
However, courts must be conscious of the vital limits on judicial authority and the constitution’s design to leave certain matters to other branches of government. The judiciary, therefore, should not interfere in the processes of other branches of government unless the branches are in breach of its constitutional obligations.
In terms of section 57 of the constitution, Parliament has the power and privilege to determine its own proceedings and procedures. As this power is provided for by the constitution, the judiciary can exercise judicial review.
The court in Tlouamma concluded that although the constitution provides for voting by secret ballot in electing the president, there is no implied or express constitutional requirement for voting by secret ballot in respect of a motion of no confidence in the president. In Mazibuko v Sisulu (2013), the courts warn that an overreach of the powers of judges can jeopardise our constitutional democracy.
The court concluded that it is within the power of the National Assembly to amend rules to provide for a secret ballot in motions of no confidence in the President and that the absence of such a rule appears to be deliberate rather than an omission. The court will, therefore, not prescribe to the National Assembly how to formulate its rules, but rather ensure that these rules give effect to the duties placed on Parliament by the constitution.
In the case of the DA v Minister of International Relations (2016), the Gauteng High Court declared that the withdrawing from an international agreement should have followed the same process as ratification of an agreement, that is, the withdrawal notice should have been approved by Parliament.
The Concourt is not affected by judgments made by the high courts in the Western Cape or Gauteng and could decide that, as the constitution provides for secret ballot when electing the president it therefore should also remove the president by secret ballot.
It would also be interesting to hear how the Concourt approaches the other salient issue of whether MPs should vote according to their conscience, the constitution, or the political party they represent.
Will the Concourt make statements around whether there must be a balance between MPs’ rights compared to that of the party view? Should the judiciary be used as the instrument to compel Parliament to allow MPs to vote according to their conscience? Will the Concourt reach into the mandate of Parliament provided for in section 57 of constitution and how far will it reach into that mandate?
* Jansen is a Cape Town-based lawyer.
** The views expressed here are not necessarily those of Independent Media.