The ill-placed applause in the Constitutional Court from the political opposition in the public benches, coupled with the back-slapping of their counsel after judgment was handed down, had a ring of desperation.
So eager are the political opposition to claim “victories ” against the ANC that they have been appearing on media claiming to have scored a “heavy blow” against the ANC. This couldn’t be further from the truth. The greatest victor in this judgment is our constitutional dispensation.
In ruling that the speaker of the National Assembly was empowered, in conjunction with the rules of parliament, to make a decision on a secret ballot for a vote of no confidence in the president, the court affirmed that it had no intention of trifling with the separation of powers. Misleading headlines suggested the court had ordered a secret ballot. The fact is that the judgment does not compel this.That was the relief sought by the applicants. The application first and foremost questioned whether the constitution required, permitted or prohibited votes by secret ballot in motions of no confidence in the president.
As the judgment notes: although section 19 states that citizens have the right to vote by secret ballot, and section 86 provides for a secret ballot for the appointment of the president, neither the constitution nor the rules of the National Assembly provides for a vote of no confidence against a sitting head of state to be conducted by means of a secret ballot.
The court handed down the only correct ruling: that this issue be referred back to the National Assembly and the rules committee. The onus is now on the legislature and the ANC will positively engage in this process with the rules committee. Although the opposition would like to claim otherwise, they failed to persuade the court .
The unanimous judgment, read out by Chief Justice Mogoeng Mogoeng, said: “That [the secret ballot] is her [the Speaker ’s] judgment call to make, having due regard to what would be best procedure to ensure that members [of parliament] exercise their oversight powers most effectively.”
The judgment reaffirmed the position advanced by the speaker that she was not averse to the vote being conducted by secret ballot. Despite the speaker consistently saying so, the political opposition resorted to frivolous and vexatious court applications.
The justices have made it clear that asking the court to prescribe a secret ballot would violate the principle of the separation of powers. This is a victory for democracy. The judgment also exposed the shrewd tactic by the opposition that it wanted to “protect ” MPs from their own parties.
The court affirmed that elected representatives are accountable to constituencies and derived their mandates from the parties thatwere voted for in terms of our country’s chosen political system. It is political parties that draw up candidate lists and the people who are called on to serve have a duty and allegiance to party mandates...