This week the Constitutional Court heard arguments in the case brought before it by the UDM and other political parties requesting a ruling on the need for a secret ballot in deciding a motion of no confidence in Parliament.
It was argued that in the absence of a secret vote ANC MPs will not be able to vote according to their conscience in fear of disciplinary action against them by the ANC. It is generally accepted that since we have a party list electoral system, members who break a three-line whip (where you have to be present in the House and vote according to the party instructions) will almost certainly lose their seats in Parliament.
But is that really true?
It is not the first time that the ANC faces a revolt from some of their MPs. In the last 23 years there have been at least five instances where ANC MPs defied the party instructions during a vote, and in none of those cases did it result in disciplinary action.
The first case of defiance came a mere two years after democracy. Towards the end of 1996, there was a vote on the Termination of Pregnancy Bill. Since the legislation legalised abortion under certain conditions, it was highly controversial, and the ANC was extremely divided over it. Yet, the ANC would not allow a free vote (i.e. where MPs could vote according to their conscience).
After enormous pressure by ANC MPs, the ANC leadership compromised and allowed those who could prove religious objections to be absent on the day. The decision helped people like Father Smangaliso Mkatshwa, Imam Hassan Solomon and 11 other deeply religious MPs. However, the singer Jennifer Ferguson could not get leave and on the day abstained during the vote.
About five years later, the country was rocked by the Arms Deal scandal. During the 2001 budget vote Pregs Govender, who was chair of the Parliamentary Committee on Women and also held hearings during the Thabo Mbeki-Aids-Does-Not-Exist time, abstained during the defence budget vote. She told the press afterwards that she could not in good conscience support the level of spending on arms given, amongst others, the desperate need for HIV/Aids intervention. A few months later she also voted against a motion on the Arms Deal.
During that same period Andrew Feinstein courageously exposed the injustices and illegal actions related to the Arms Deal. During a motion of no-confidence in the Speaker (that related to her handling of the debate on the arms deal), he abstained during the vote.
In 2011, during the vote on the Secrecy Bill, Gloria Borman asserted her objections to the legislation by abstaining during the vote. ANC stalwart Ben Turok left the chamber just before the vote took place and explained to the press afterwards that it was deliberate, since he did not want to vote for the bill.
All of these instances resulted in an angry outcry from the ANC and threats of disciplinary action. However, in none of these cases did it actually result in any actions or penalties from the party structures. The Turok/Borman case was due to appear before the disciplinary committee, but on request from Pallo Jordan (who defended them) for a political solution and threats of legal actions by the two MPs, the disciplinary committee capitulated and nothing came of it.
So how real is the threat of losing their seats for ANC MPs who might vote with the opposition to get rid of President Jacob Zuma?
Members of Parliament lose their seats once they cease to be a member of the political party through which they were elected. In the ANC’s case, that can only happen if the person resigns from the party or after an internal disciplinary hearing. The ANC constitution, in rule 25 and Appendix 3, describes in great detail the internal disciplinary process. In summary, a charge sheet needs to be drawn up and served on the relevant person. The accused then has to appear before the disciplinary committee which, importantly, is currently chaired by Derek Hanekom. If found guilty of the charge, there are numerous forms of sanction, one being loss of membership. The person involved then has 21 days to appeal, after which another hearing is held.
If an MP loses his/her membership after this lengthy process, Parliament is informed and the MP is then given notice that he/she will cease to be a member of Parliament. However, at this stage the MP can still appeal the matter to the courts. In a recent article, Jeremy Gauntlett SC examined the legality of such a case. He argued that he did not believe that the courts would uphold the firing of an MP, where he/she can prove that they voted in line with their conscience. It might be for this reason that the ANC has never taken such action against MPs who defied the party line in the past.
Importantly, previous courageous acts of defiance were by individual MPs. There is definitely safety in numbers. It is very difficult to see how the ANC will be able to take action against 30 or more MPs that vote against the party line. It will take an enormous amount of time to proceed with disciplinary action against each MP individually. To “prosecute” them in a group would certainly invoke memories of, for example, the Rivonia Trial.
Not only will that cause great unhappiness in the ANC, but would most probably be against the ANC constitution. The ANC will also know that such a large group of MPs will combine resources and turn to the courts. All of this will take months, by which time there will hopefully be a new president of the ANC, who can ask the NEC to drop all the charges.
It is important to note that in all the cases mentioned above, the MPs eventually resigned. Jennifer Ferguson immigrated to Sweden a few months after the vote. Pregs Govender resigned almost immediately after her vote against the Arms Deal. Andrew Feinstein was eventually called in by the ANC’s secretary general, at the time Kgalema Motlanthe.
Andrew told me afterwards that it was made clear to him that the president (Mbeki) wanted him to leave, and he therefore felt that he had to resign. (Ironically, both Motlanthe and Mbeki are now encouraging MPs to vote according to their conscience.)
Ben Turok bravely stayed another three years before resigning, on amongst other, health grounds. Although none of them ever publicly argued that they left because of intimidation, it is well known that they faced animosity and even threats from inside the ANC for following their conscience.
So for ANC MPs to feel secure enough to vote against the motion in the absence of a secret ballot, they will have to feel part of a critical mass – not only because it will then be difficult or virtually impossible for the party to fire them, but also so that they will not feel isolated and vilified by their colleagues. Hopefully someone is busy organising this behind the scene.
– Melanie Verwoerd is a former ANC MP and South African Ambassador to Ireland.
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