Tag: secret ballot

Was Zuma behind the secret ballot?

Monday’s announcement by Baleka Mbete that the motion of no confidence would be decided by secret ballot took many, if not most, people by surprise.

Why did she decide on a secret ballot, when it clearly posed significant political risk to her if the ballot passed?

This question became even more intriguing when it emerged that she did not consult with the ANC NEC and that even they were caught by surprise.

Some analysts argued that the legal advice and opinions presented to her were so convincing that she did not have a choice. That might well be true, although it should be said that her political future would still have been more important to her than the possibility of losing in court again.

Some journalists went further and questioned whether she had gone “rogue” and whether this decision was not only her way of redeeming herself as a politician and thus securing her legacy, but also that the possibility of being interim president (should the motion have passed) might have been her way off kicking off her own presidential campaign.

I don’t think that this was convincing. First of all it posed an enormous risk for her in terms of her standing in the ANC should the vote have gone against President Zuma. We have to remember that a majority of NWC, NEC and arguably even branch members still support the Zuma faction. More importantly if Mbete was seen to have strengthened the hand of the opposition and so caused a victory to them, her standing in the ANC and in the Presidential race would have been fatally damaged. As much as there might be a growing discontent in the ANC about President Zuma, that does not translate into ANC members being comfortable with an opposition victory of any sort.

So what was going on?

I believe that President Zuma not only agreed to a secret ballot, but wanted it.

I find it implausible that Mbete (who is also Chairperson of the ANC) did not consult with Zuma before making her decision. Failure to do so would be strange in any political party, but given its culture of collective decision-making, much more so for the ANC. I also do not believe that Mbete would have gone directly against the president’s wishes unless it was agreed to by the NEC (which we know was not the case).

This leaves only one alternative and that is that President Zuma decided to take a calculated risk, i.e. that he argued “Bring it on”. This would be typical of him. He would have known that if he were to survive the motion through a secret ballot, it would be the ultimate victory for him, thus effectively silencing any opposition voices inside the ANC and also making any further votes of no-confidence highly unlikely in the next few months.

It would also explain why Mbete waited until the day before the debate to make the announcement. If indeed the president was in favour of a secret ballot, he would have requested or more likely instructed Baleka to only make it known the night before the vote in order to a) give the anti-Zuma faction as little time as possible to mobilise and b) to give the ANC the maximum time to “intimidate” or put pressure on their own members – as we have indeed seen happening in the last few weeks.

And of course the gamble paid off from Zuma’s perspective. Only 177 members voted against the motion. This does mean that 28 or 29 ANC members most likely voted with the opposition and 9 abstained. Although significantly more than most people anticipated, it is a long way from the 201 votes that would have been required to pass the motion.

I have always maintained that if Mbete ruled for a secret ballot it would signal that she and the ANC were sure that the motion would not pass. I was right. I also warned that as a country we could be worse off after a vote of no confidence and I think we are.

President Zuma got what he wanted, courtesy of the opposition parties. After this vote he is stronger than ever before, no matter how hard the opposition will try and spin the fact that many ANC MPs voted for the motion. The outcome of the vote has effectively silenced any opposition to Zuma in the ANC at least until December. And it might even have for now strengthened his hand in terms of the outcome of the Electoral Conference.

The motion of no confidence was without doubt spectacular political theatre. Sadly, however, now that the curtain has fallen, South Africa is probably worse off than before.

By Melanie Verwoerd for News24

After almost 10 hours of legal arguments, the Constitutional Court reserved judgment on the United Democratic Movement’s application to direct National Assembly Speaker Baleka Mbete to hold a secret ballot on a motion of no-confidence against President Jacob Zuma. The matter boiled down to Mbete’s discretion to allow a secret ballot. Advocates representing opposition parties argued the secret ballot was required in this matter, while Mbete and Zuma’s advocates conceded it was permissible. As fascinating as the legal arguments were, this case is about politics. Therefore, the courts can only go so far in dealing with South Africa’s big political dilemma: the disastrous Zuma presidency.

Throughout the day, the judges of the Constitutional Court asked counsel for the various parties before them about the basis on which the court should be involved and why the secret ballot was necessary. The judges were clearly concerned and mindful of the separation of powers doctrine and the question of judicial overreach. The only thing the court could do, Chief Justice Mogoeng Mogoeng said, was look at the law and interpret it.

At the end of the day’s arguments, Justice Mogoeng thanked the advocates for their “enlightenment”. “You have no idea how challenging it was to conceptualise the issues,” he said.

Apart from the judges being cautious of another matter relating to Zuma, particularly as his supporters in KwaZulu-Natal were staging a protest against judicial overreach, they also wanted to be careful not to encroach on the functions of Parliament or prescribe to the Speaker how to act.

While the drafters of the Constitution spelt out that the president should be elected by secret ballot, they did not stipulate as much in the section on the removal of the president through a motion of no confidence. Mbete refused the UDM’s request for a motion of no confidence through secret ballot. She stated in a letter to the UDM’s attorney that she had no authority in law or through the rules of Parliament to grant this.

Lawyers initially fumbled on the question of why the court should intervene and what the National Assembly rules allowed for. Dali Mpofu, representing the UDM, said MPs were entitled to vote according to conscience and should be protected because of the risks they could face if they did so. He said the separation of powers was not at issue and there needed to be an interpretation of the instruments for holding the president accountable.

Tembeka Ngcukaitobi, arguing on behalf of the Economic Freedom Fighters (EFF), said the motion of no confidence could not take place effectively unless it was conducted through a secret ballot.

“The most practical way of holding the executive accountable is a secret ballot,” Ngcukaitobi said. He said the Constitutional Court must only deal with current motion and not secret ballots in Parliament generally.

But the advocate for the Inkatha Freedom Party (IFP), Anton Katz, said every motion of no confidence should be decided by secret ballot in principle. He said IFP MPs had consistently requested that motions be decided by secret ballot and were denied this.

Maruma Moerane, representing the Speaker, said the National Assembly had considered and decided against a secret ballot. He said the Constitution left the determination of voting procedures to the National Assembly.

“If it wanted a secret ballot, it would say so,” Moerane said. Mbete was not prepared to make an assumption that people would vote differently in open vote and in a secret ballot, he said.

But Moerane conceded eventually that Mbete had the discretion to allow a secret ballot, through the reading of section 103 and 104 of the rules of the National Assembly.

While Mbete did not oppose the application, Zuma did.

Ishmael Semenya, representing Zuma, argued that if there were any risks against MPs, this should be referred to Parliament’s rules committee together with the evidence so that that the rules could be amended. He said for the UDM application for a secret ballot to succeed, the Constitutional Court had to determine that the executive could not be held to account through an open vote.

It was interesting that the ANC did not participate in the case, although their MPs were the subject of the discussion, particularly the intimidation and possible risks facing them. Mpofu said that the risk to MPs was more than the daunting prospect of challenging the president. He said because ministers and deputy ministers also had to resign if a motion of no confidence was passed, it was not just the president that MPs were voting against but up to 70 of their colleagues.

While the judges’ line of questioning eventually led the senior counsel to come to some consensus that the secret ballot was permissible and the Speaker had the discretion to allow it, the matter remains complex. This is yet another matter before the courts where the President of the Republic is a respondent. The issues in this case are not about whether he is a fit and proper leader but it is difficult to see the arguments outside the context of Zuma being a disastrous president who has dragged the country to the brink.

If the Constitutional Court could hear arguments from lay people, in this case the opposition party leaders, the rationale for the secret ballot would be very different. It would be about the track record of Mbete in bulldozing the opposition, the frustrations they face in Parliament by being stonewalled through the ANC’s majority, and how Zuma has made a mockery of the accountability mechanisms. If this was the court of political opinion, they could argue why the motion of no confidence against the president needed to succeed.

But the case is not about Zuma or the merits of the motion of no confidence. It is only about the law, the rules of the National Assembly and the interpretation of these with regard to the secret ballot.

There is also another factor in this case. While there might be ANC MPs willing to vote according to conscience, the majority of the caucus will not do so – even though they might be opposed to Zuma’s continued leadership of the country and the ANC. Some of them might be influenced by the party line, as pronounced by the ANC national working committee. But others would want the ANC to decide on their leader’s future, not the opposition to drive the process.

But is the ANC capable of acting against Zuma? The party will have to answer that question at the end of this month when the national executive committee meets. If the party fails to deal with Zuma’s appalling leadership and fails to hold him to account for his Cabinet reshuffle, it might make it easier for ANC MPs to vote according to conscience.

For now, the question is how the judges of the Constitutional Court will continue to protect and defend the rule of law through their interpretation of the application for a secret ballot. If Monday’s riveting arguments are anything to go by, the answers are pretty obvious regarding the Speaker’s discretion.

But the Constitutional Court has surprised us in the past with their astute interventions in this period of turmoil. Perhaps they will do so again.

By Ranjeni Munusamy for Daily Maverick

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