The 22nd of June 2017 played out predictably. In Johannesburg, Chief Justice Mogoeng Mogoeng read out the Constitutional Court’s “secret ballot” judgment with preacher-style emphasis that everyone, from the president to those holding Stop-and-Go signs on roads under construction — which appear the only jobs the current administration can create — is beholden to our Constitution.


Writing for a unanimous court, Mogoeng reiterated the discretion that the national assembly’s speaker has in deciding whether a proposed vote of no-confidence be conducted by open or secret ballot. In setting aside Speaker Baleka Mbete’s earlier ruling that she would not — because she felt, legally, that she could not — declare voting be done in secret, Mogoeng also emphasised that Mbete would need rational reasons to decide against a secret ballot.


In Cape Town, meanwhile, President Jacob Zuma was giggling and jigga-ing in parliament during question-time. He slipped into his instinctive blend of traditionalist orthodoxy and tangential obfuscation: denigrating opposition leaders in isiZulu, calling DA leader Musi Mmaimane an “umfana” (an uncircumcised little boy, with the accompanying suggestion that Mmaimane had no right to speak amongst elders) and declaring that the nuclear energy deal with the Russians, set to cost South Africa trillions, was still on. Staggeringly, the president claimed the deal would eventually make a profit for the country.


Perhaps the president has been drinking the fake news Kool-Aid of the Guptas and Bell Pottinger. He certainly appeared to be suffering hallucinatory moonshine-induced vision with obdurate claims that he was running the country “well” — despite evidence to the contrary, including daily community protests against state failures, the auditor-general’s finding that national and provincial government departments had spent R46-billion irregularly in the 2015-16 financial year, South Africa’s recent investor ratings downgrade to junk status and formal unemployment in the first quarter of this year reaching 27,7%.


Even in throw-away attempts at humour during his time in parliament, Zuma made clear that he is anti-black; that he has no time for urbanised “cleva blacks” and that he recognises his constituency to be rural people (preferably under-educated through his government’s failure to deliver quality education) who can be manipulated to believe transformation happens through proximity to power (in the ANC and the state), rather than adherence to the clear vision of the Constitution which seeks to address the imbalances and traumas created by apartheid.


When accused of “fiddling while Rome burns” by IFP member of parliament, Narend Singh, Zuma remained adamant that, despite his instigation of various court cases that seek to clog up democracy’s functioning and slow down the processes that would encourage government transparency and accountability, his government was functional. The crisis of a South Africa under stress was merely “political exaggeration” the president told the country.


“We will certainly come to know who is burning the Rome,” Zuma said.


These are both the best, and worst, of times. The judiciary is holding firm against capture and co-option, while mapping out a Constitutional vision for the country and government office-bearers that very few people holding the nation’s power in trust have demonstrated an understanding of, or even an affinity for.


Building on previous Constitutional Court judgments which have stressed that democracy is participatory, ongoing exercise, rather than the mere act of scrawling an “X” on ballot paper every five years, the court stressed that a motion of no confidence vote “is all about ensuring that our constitutional project is well-managed; is not imperilled; the best interests of the nation enjoy priority in whatever important step is taken; and our nation is only governed by those deserving of governance responsibilities”.


In finding that the speaker in parliament had the power to call for a secret ballot the Constitutional Court found a balance between members of parliament having to vote in line with their party, or with their conscience — which may be contrary to the wishes of the party.


“If the will of political parties were to always prevail, the Constitution would probably have required political parties to determine which way they want to vote on issues and through their Chief Whip signify support or opposition by submitting the list of Members who would be present when voting takes place. But, because it is individual Members who really have to vote, provisions are couched in the language that recognises the possibility of majorities supporting the removal of the president and the speaker,” Mogoeng noted.


When a secret ballot would be appropriate, “is an eventuality that has not been expressly provided for and which then falls to the Speaker to determine,” the Court found.


This power to determine when a secret ballot should be used to ensure members of parliament “exercise their vote freely and effectively, in accordance with the conscience of each, without undue influence, intimidation or fear of disapproval by others,” Mogoeng wrote.


He went on to assert that central to the freedom for parliamentarians to vote with their conscience was their oath of office: “Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our Constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.”


Mbete, with an eye potentially on her personal political ambitions, may decide against holding a secret ballot when a vote of no confidence is eventually scheduled, which, with parliament soon going into recess, will likely to only be in August.


The opposition parties have threatened to take legal action if Mbete decided against a secret ballot, which may mire the entire process in a few more months of law-fare in the courts. Mbete would have to prove the rationality of her decision.


But, if a vote of no confidence does play out before the ANC’s national elective conference in December this year, it will certainly make for interesting odds on whether the president will stay or be removed.


As Zuma himself pointed out in parliament on Thursday he has survived seven votes of no confidence during his two terms. Following the Economic Freedom Fighters (EFF) installation in parliament after the 2014 national general election, they have refused to participate in any of these votes.


Whether its the Gupta family links to people like finance minister Malusi Gigaba or alleged dodgy dealings involving Nomvula Mokonyane, the water affairs minister and another Zuma lapdog, the EFF’s intel and insider knowledge of what small nyana skeletons exist in the ANC appears unparalleled. That the party is willing to participate in the next vote of no confidence against Zuma suggests they may know something a lot of South Africans have been wondering about over the past few months: how some ANC MPs will vote.

Main Photo: Opposition party leaders outside the Constitutional Court after it ruled that the Speaker of Parliament had the power to call for a secret ballot in a vote of no confidence against President Jacob Zuma - by Madelene Cronje

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