What we are witnessing is not unprecedented. Elsewhere, political parties who find themselves on the back-foot have been known to press for secret ballots simply to rid themselves of political opponents. In pushing for this motion, the political opposition may be unwittingly (one hopes unwittingly) advocating for parliamentarians to be able to conduct their business away from the prying eyes of the public that elected them.
It is not without significance that neither the Constitution nor the rules of the National Assembly provide for a vote of no confidence against a sitting Head of State to be conducted by means of a secret ballot.
Although Section 19 of the Constitution 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 (with the procedures therefore elaborately spelled out) it is clear that the lawmakers intended not to be prescriptive with regards to passing a motion of no confidence in the same President.
Considering that any member of the National Assembly has the right to request for such a motion of no confidence to be debated and voted for, it is clear that this was no oversight.
In not being prescriptive, the drafters of our Constitution had due regard to a number of factors.
First, of the gravity of the consequences of such a motion.
Second, of the principle of separation of powers.
Third, of the ramifications of conducting such a vote on such an extreme form of censure under a veil of secrecy.
Taking all of the above into consideration, we have a situation where the onus is on the legislature to determine how such a motion will be conducted.
In considering the arguments for and against the use of a secret ballot to pass a vote of no confidence in a President, important questions should be asked about whether such a move is really in the interests of the public, or to serve narrow and short-sighted political ends.
It is paradoxical that those pushing for secret ballot to remove the President in the same breath hold themselves up as advocates of a more transparent and open system of governance.
As some have pointed out, there has perhaps not been proper consideration given to the consequences of “letting the genie out of the bottle”.
Today it may be that a secret ballot will be used for the removal of public officials elected by the people.
Tomorrow it may be to pass unsavoury and constitutionally questionable motions under the cloak of darkness.
This is not even to consider the potential for the entry of the nefarious system of cheque-book politics, where the votes of MPs’ can be bought and sold.
It is daunting to consider the resulting paralysis that would ensue as every single one of these secret ballots would be subject to legal scrutiny and end up in the courts.
What we are witnessing it not unprecedented. Elsewhere, political parties who find themselves on the back-foot have been known to press for secret ballots simply to rid themselves of political opponents.
In pushing for this motion, the political opposition may be unwittingly (one hopes unwittingly) advocating for parliamentarians to be able to conduct their business away from the prying eyes of the public that elected them.
This is a slippery slope towards closed government, and the public should not be fooled. Persons elected to Parliament are there at the behest of the constituencies they serve, and we should not allow a situation to prevail where MP’s operate in secret.
In the famous words of Louis Brandeis: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. The most important political office is that of the private citizen.”
It is highly problematic that the opposition parties involved in the court action are cloaking their shrewd political move in the language of benevolent concern for ANC MP’s.
It is grossly insulting to the men and women representing the ANC in Parliament that they should be regarded as mere voting cattle who need the political opposition to “protect them” from censure.
The ANC owes its position to an overwhelming public mandate given to the organisation by the electorate, and it would be alarming to say the least if the benches are stacked with representatives with not a backbone among them.
In any event, the notion that parliamentarians should somehow be “protected” against voting along party lines is questionable.
South Africa is a multiparty democracy. We don’t vote for individuals in national and municipal elections, but for parties.
It is parties who nominate their candidates and who compile party lists. Our Parliament is representative and comprises the political parties who were voted for by the people.
MP’s are not free agents, but owe their position to being called to serve their parties. The ANC has made it clear through our Secretary General that its MP’s will not support this motion of no confidence in the President, so it cannot be that MP’s should be cherry-picking party decisions.
Influential political theorists like John Stuart Mill have held that voting in secret should be an exception rather than a rule, expressing the same concerns echoed by the ANC today: namely that voting is a trust, not a right – and that legislators are carrying out a public duty, not acting in their own personal interests.
Just like they carry out other duties publicly, so they should deliberate and vote publicly.
Mill argued that because of the weight accorded to voting on behalf of the public and in the public interest – secret ballots are problematic because they infer that legislators are acting independently and can thus vote as they are so inclined.
If the public good is the consideration, secrecy undermines accountability to that same public.
Mill wrote in Considerations of Representative Government: “His vote is not a thing in which he has an option; it has no more to do with his personal wishes than the verdict of a juryman.”
If one presumes that the voter is duty bound to the public, and not beholden to his own personal beliefs and interests, there should be no problem in this vote being conducted in public.
Otherwise as Mill notes: “If it belongs to the voter for his own sake, on what ground can we blame him for selling it, or using it to recommend himself to anyone whom it is in his interests to please?”
The ANC has been voted into power in all the successive elections since democracy because the people of this country see it as the only party capable of delivering on its electoral mandate to realise a better life for all.
It follows then that those called upon to serve the ANC and their country in parliament should respect the decisions of the party that put them there. Not only does it make absolutely no sense that the opposition expects parliamentarians of the ANC to vote against the positions of their own party – it is also duplicitous and hypocritical.
The very “conscience the opposition seeks from ANC MP’s is a luxury they deny their own public representatives in Parliament.
The EFF, DA and UDM should make public what their own respective constitutions say about “renegade” MP’s.
The DA’s constitution is clear.
“ Section 3.5.1: A member ceases to be a member of the party when he or she, being a public representative of the party in a legislative body, in any meeting of that legislative body, votes in a manner other than in accordance with a party caucus decision which is consistent with party policy, in that legislative body, or being a single public representative in a caucus votes in a manner inconsistent with the instructions of higher party structures or party policy: save in the case where the party allows a free vote on the issue being voted on, or the caucus has given permission for that member to vote in a particular manner.”
Not only should the DA explain to the public how many of its MP’s have been expelled for not voting along party lines, they should (in the interests of transparency) make public the record of instances where they have held secret ballots on internal party matters.
For all its talk of free political agency, the EFF’s track record on dealing with dissent within its ranks is well-established, with the expulsion of MP’s for speaking out against party leadership widely publicised.
The EFF constitution is even clearer than that of the DA – noting the following: that “the individual is subordinate to the organisation, that the minority is subordinate to the majority, that the lower level is subordinate to the higher level”.
Most importantly: that “the decisions of the upper structures are binding on the lower structures”.
The EFF should also in the interests of transparency make its Code of Conduct for party members public, especially the parts about the consequences for breaking party ranks in voting – and on whether the party even allows secret ballots at all.
Clearly then, what is good for the goose is not good for the gander.
They want the ANC to be civil democrats (which it is) whereas they are Stalinists themselves.
It is regrettable that political parties in South Africa continue to abuse this crucial constitution entitlement aimed at safeguarding our democracy, to score political points.
If one considers just how many of these motions of no confidence have been attempted by the DA, one may conclude it points to an increasing desperation on the part of the political opposition.
Far from being the exception or last resort they claim it to be, tabling motions of no confidence has long been the first resort whenever things are not going their way in Parliament. It points to a paucity of ideas and lack of rigour to deal maturely with the cut and thrust of being in a modern political state.
Having failed in these endless bids, they are now trying to enlist the services of the judiciary as their political hatchet men and women; hopefully the Bench will see through this obvious ruse.
The business of Parliament is not child’s play. It needs men and women of ordinary courage who are able to take forward the aim of advancing South Africa and its people.
We face a huge number of challenges with regards to the delivery of a better life for our people, and it is the expectation of the public that we spend our days, hours and months on the benches acting in their interest.
That MP’s should spend precious hours debating endless motions of no confidence that never succeed, instead of dealing with the real business of Parliament, is a sideshow and distraction. It also conveniently side-steps the critical question of whether our opposition parties have actually delivered on their promises to their constituents.
This application to have a motion of no confidence passed in secret is an attempt to justify cowardice and underhanded behaviour by MP’s. Worse still, the courts are being asked to endorse this duplicity.
It is one of the greatest travesties of modern South Africa that our courts appear increasingly eager to entertain vexatious litigation.
All South Africans who expect (demand, in fact) transparency and accountability of their government should sit up and take notice when attempts are made to justify the intrusion of antidemocratic practices into Parliament, and the use of our courts as a political ping pong ball. Especially – when it is being done so in their name.
Simply put, a motion of no confidence is a moral test, while the impeachment proceedings are a factual test. For example – should the Constitutional Court make an adverse finding against the President regarding his conduct where the law or the Constitution has been violated – then, arguably, this could constitute a factual ground for impeachment proceedings.
Edna Molewa is a member of the National Working Committee (NWC) and National Executive Committee (NEC) of the ANC