Johannesburg - President Jacob Zuma could be in for a surprise if the Constitutional Court allows MPs to vote in a secret ballot on a motion of no confidence in him.
Several ANC MPs told The Star on Monday that moves were afoot by certain ANC lawmakers to join the opposition in voting for Zuma to vacate office. This is despite the party ordering its MPs to vote against the opposition motion to oust the president, with Deputy President Cyril Ramaphosa last week telling Parliament he expected them to vote on party lines.
MPs told The Star that some ANC leaders were also planning to call for Zuma to resign when the party’s national executive committee (NEC) meets next week and avoid being embarrassingly voted out by comrades. That is if the Concourt rules in favour of a secret ballot this week.
A decision in favour of the opposition would significantly shift the balance of forces in the ANC and alter the approach towards the motion of no confidence vote and Zuma’s grip on power.
An ANC MP said there were a significant number of MPs who were prepared to vote with the opposition to get rid of the president, as they could no longer defend his administration.
“I can guarantee you that there are more than 50 MPs (from the ANC) willing to take him (Zuma) out. Remember, there will be no intimidation; there will also be no closure,” he said, speaking on condition of anonymity.
“If the secret ballot is granted, then there will be a sober discussion, the instruction (that MPs toe party line) won’t work. I won’t vote for him; I don’t see how he is going to survive this if the decision is granted,” he added.
But an MP supporting Zuma said they were aware that there was a group of senior ANC MPs lobbying to use the secret ballot to remove Zuma, even though there was a standing decision to toe the party line. The leader said they were prepared for those who would want to use the NEC meeting to further call for Zuma to quit. Asked about those who were set to call for Zuma to resign, the MP said: “That will be ill-discipline.”
The hearing into the matter on Monday has exposed the behind-the-scenes jostling in the ANC caucus, despite the party’s instruction.
On Thursday, some ANC officials, including secretary-general Gwede Mantashe and his deputy, Jessie Duarte, descended on the caucus to ensure that the party line is carried out.
ANC MP Mcebisi Skwatsha said “irrespective of what the Concourt says, I’m going to vote according to my party line, there’s no two ways about it”.
ANC parliamentary spokesperson Nonceba Mhlauli maintained the position that its MPs will vote according to the prescripts of the organisation. “I can’t speculate on what might happen in the future, but our position has not changed,” she said on Monday.
This came as lawyers representing opposition parties and civil society faced tough questions from the full bench of the Constitutional Court judges on why the court should force National Assembly Speaker Baleka Mbete to allow a secret vote.
Advocate Dali Mpofu, representing the United Democratic Movement, which brought the case to court, argued that Mbete had the prerogative to decide whether MPs can vote in secret or not.
The judges asked Mpofu about the rationale of the parties approaching the court and not dealing with the matter in the National Assembly.
“Why is it that the constitution prescribes a secret ballot? To protect the voter against possible intimidation, risk of any threats, of any adverse consequences. What we are saying is that the mere risk of something happening constitutionally compels us to prescribe the secret ballot,” Mpofu argued.
Although he did not have specific cases of intimidation, Mpofu said “a secret ballot as in the elections is a simple antidote for real potential threat”.
Chief Justice Mogoeng Mogoeng had asked: “How do you prove intimidation?”
Mpofu argued that the Constitutional Court should look at countries like Ghana, Zimbabwe, Botswana and South Korea, among others, whose courts have ruled for a secret ballot. But Justice Mogoeng said the constitutions of those countries made provisions for a secret ballot, while the South African one did not.
The judges questioned why the section in the constitution dealing with the vote of no confidence did not specify that the vote should be held by way of a secret ballot while other sections explicitly stated the method of voting.
Justice Mogoeng asked why the parties would want ANC members not to vote along party lines, while their own constitutions did not allow their members to vote according to their conscience.
Arguing for the EFF, advocate Tembeka Ngcukaitobi said Mbete had erred when she said she didn’t have the discretion to allow a secret ballot.
Justice Edwin Cameron asked which section of the constitution obliged Mbete to call for a secret vote. Ngcukaitobi said this was because the ANC held a “super majority” in Parliament and there was an “uncontested threat of party discipline” against ANC MPs who failed to follow the party line.
Arguing for Mbete, advocate Marumo Moerane SC said that in order for the parties to bring such a matter on a secret ballot, they would have to prove there was a constitutional obligation that Parliament had not upheld - which none of the parties had done.
Moerane was pressed on why the drafters of the constitution saw it necessary to provide for a secret ballot when voting for the president and during general elections. He argued that the secret ballot was permissible, but it was the obligation of the National Assembly and not for Mbete to decide.
Justice Chris Jafta questioned Moerane on whether the secret ballot wasn’t the only way to prevent repercussions for MPs who vote against party lines. “What concerns me is the decision by the National Assembly that motions of no confidence can’t be decided by secret ballot. There could be consequences for this,” he said.
Judgment was reserved.