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19 August 2017 22:36 (South Africa)
Opinionista Loammi Wolf

The Secret Ballot conundrum

  • Loammi Wolf
    Loammi-Wolf.jpg
    Loammi Wolf

    Loammi Wolf is a constitutional law specialist who runs the initiative Democracy for Peace.

The United Democratic Movement has approached the Constitutional Court for a ruling that a no confidence vote in President Zuma should be conducted by way of a secret ballot. Comparing the German and South African parliamentary systems and rules is instructive.

Section 86(2) of the Constitution determines that parliament elects the president by majority vote in a secret ballot. This provision is similar to article 67 of the German Constitution: the federal parliament also elects the chancellor by majority vote in a secret ballot.

The rationale behind this provision is that the government derives its legitimacy solely from the parliament that elects the head of government. The South African president, like his German counterpart, is elected by all the members of parliament. He or she does not only represent the strongest party in parliament as leader of the government but the Assembly as elected representatives of people.

Section 86(1) determines that the members of the Assembly elect “a woman or a man from among its members to be the President”. This signals that the election is based on the principle of collegiality. The secret ballot therefore also serves the purpose that there should not be any ill feelings when certain members did not vote for specific candidates because that could hamper the work of the legislature and the executive at a later stage.

In practice, the leader of the strongest party will usually become the leader of government. In a coalition government, there will be agreement that the strongest coalition partner’s leader will become the head of government.

This is a shift away from the practice in constitutional monarchies, where the monarch tasks the leader of the strongest party to form a government and legitimises the government who then serves “at the pleasure” of the monarch. This is the typical construct that was retained in most Westminster systems, too, even if they moved on to a republican system.

The speaker and the deputy speaker are elected according to the same procedure. Sections 52(2) and (3) of the Constitution determine that the speaker and deputy speaker are also elected by majority vote with a secret ballot. The speaker is the leader of the National Assembly as an institution and represents all members of parliament as representatives of the electorate. This election, too, is on the basis of the principle of collegiality.

The difficulty is that the Constitution does not explicitly specify whether the dismissal of the president, the speaker or deputy speaker should also be by way of a secret ballot. Section 102(2) of the Constitution only determines that:

“If the National Assembly, by a vote supported by a majority of its members, passes a motion of no-confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.”

Similarly, section 52(4) of the Constitution specifies that the “National Assembly may remove the Speaker or Deputy Speaker from office by resolution. A majority of the members of the Assembly must be present when the resolution is adopted.”

The German Constitution regulates a no-confidence vote in article 67 and also requires “a majority vote”. Like section 102 of the South African Constitution, article 67 does not explicitly state that the vote must be by secret ballot, but the decision is taken by secret ballot. The rationale behind the measure is that the confidence vested in the chancellor by secret ballot to form a government is also withdrawn with the no-confidence vote by parliament as an institution on the basis of the principle of collegiality.

For many years the German Chancellor Helmut Schmidt wondered who in his own party voted in favour of the no-confidence motion in him in October 1982, but could not hold it against anybody. The German parliament had tabled a motion of no confidence in him after the coalition government between the SPD and the FDP broke up over a number of issues.

The difference between the secret ballots to elect or dismiss the head of government and other voting procedures in parliament is that these parliamentary procedures must be open and transparent. The caucus of a party can also expect its members to vote according to the party line in order to put the ruling party’s or the coalition government’s policy into practice. Here parliament acts as a legislative body and the procedures entail the drafting of legislation, deliberations of select committees and debates in parliament. In South Africa open ballots are implicit to sections 57(1)(b) and 59(1)(b) of the Constitution to do justice to the requirements of transparency and openness in the functioning of the National Assembly. This must be clearly distinguished from the act to legitimise the government or to withdraw confidence in the government on the basis of the principle of collegiality.

Whether a majority vote to withdraw confidence in the government of the president should be by secret ballot has been a bone of contention in South Africa for a while. In 2015 Agang, Cope and the UDM approached the Constitutional Court for direct access to the court to clarify the matter, but such access was not granted. The three parties then took the matter the Western Cape High Court for a ruling. Before the judgment is discussed, one should take note of another judgment of the Constitutional Court even if it is not a case in point.

In Masethla v The President (2007) the Constitutional Court gave some guidance on how to deal with the termination of a public office where the appointment is done in terms of the Constitution but the dismissal procedure is either not regulated at all or not regulated in detail. The court was called upon to decide whether President Mbeki could terminate the term of office of Masethla as director-general of the National Intelligence Agency (NIA) prior to its expiry. Deputy Chief Justice Dikgang Moseneke, on behalf of the majority, held that the president’s power to dismiss the director-general from office is “incidental to the power to appoint” him (par 164). The president must have “complete trust” that he could rely on intelligence communicated by the NIA head and if this is no longer the case, he must be able to dismiss the director-general if this is necessary for the effective performance of his functions. The court concluded that “in the absence of constitutional or statutory provisions to the contrary, the power to remove must be considered to be incidental to the power to appoint” (par 167).

The case of Masethla differs from the withdrawing of confidence in the president’s government in a important respect. The relation between the president as head of the executive and the director-general of a state department is of a hierarchic nature and therefore a minister of the cabinet can fire a director-general when the relation of trust between them breaks down irretrievably. The relation between the members of parliament who voted one of their number into power as head of the executive is not based on a hierarchic power relation. It is based on the principle of collegiality which has its roots in republicanism. Thus, the head of government is elected to be a primus inter pares, the first amongst equals.

If one therefore applies the rule how to fill a lacuna in the Constitution about dismissal procedures one must be careful to bear the different power relations and corresponding justification for a dismissal in mind. When the members of parliament withdraw their confidence in the government of the president with a no-confidence vote, this is done on the basis of the principle of collegiality and not hierarchic subordination.

One can, however, still apply the rule that crystallised in the Masethla case insofar as it offers guidance on how to fill a legal lacuna in a constitutional provision, in this case, whether the vote of no confidence should be by secret ballot or not in the absence of a clear constitutional regulation of the type of ballot. A strong case can be made that the same procedure as with the appointment should be followed when a no confidence motion is considered. The secret ballot is therefore implicit to section 102(2) of the Constitution to dismiss the president from office because he is also put in power by a secret ballot.

The Western Cape High Court’s judgment in Tlouamma and Others v Mbete, Speaker of the National Assembly (2015) dealt with a number of issues but only the order that the speaker should ensure that the no-confidence vote is taken by secret ballot is of interest here. In the alternative, the applicants applied for a declaratory order that the speaker has the authority to rule that such a vote on a no confidence motion should be secret and that a debate on the topic should be allowed in parliament. The applicants cogently argued that the president is elected under a secret ballot and should, where he has lost the confidence of the majority of the Assembly, be voted out of power by secret ballot. They argued then, as the UDM does now, that members should be allowed to vote according to their conscience by secret ballot, especially since ANC members who have lost confidence in President Zuma genuinely fear expulsion from the party if they publicly support the motion of no confidence. They further relied on political rights guaranteed by section 19(3)(a) of the Constitution to make free choices. It was finally pointed out that the National Assembly Rules 77 to 93 do not make provision for a secret ballot. Thus any request for a secret ballot involves an eventuality which the rules do not provide for and, that being the case, the speaker has the discretion in terms of Rule 2(1) to make a ruling, and if need be, to frame a rule. Such a rule remains in force until a meeting of the Rules Committee has decided thereon (Rule 2(2)).

The speaker submitted that there was no legal basis for a vote by secret ballot. It was argued that neither the Constitution nor the National Assembly Rules 77 to 93 which deal extensively with voting processes provide for voting by secret ballot. Thus, Rule 2(1) is not applicable and the Speaker has no discretion to rule how voting should be undertaken in respect of a vote of no confidence. Furthermore, any such requirement would be inconsistent with the requirements of transparency and openness in the functioning of the Assembly in terms of section 57 and 59 of the Constitution.

Justice Goliath, on behalf of a unanimous court, found that Rule 2(1) is not applicable since it only deals with matters not contemplated in the National Assembly Rules. Rules 77 to 93, however, deal extensively with voting processes, yet no provision is made for voting by secret ballot. Hence, Rule 2(1) can provide no recourse to the applicants. The Court held, however, that the Constitution clearly provides for a secret ballot in the election of the president, speaker and deputy speaker, but reasoned that there “is no implied or express constitutional requirement for voting by secret ballot in respect of a motion of no confidence in the President.”

With regard to the argument that ANC members are afraid to vote according to their conscience because they fear expulsion, and that the Assembly therefore cannot withdraw its confidence in the president in the same way it conferred confidence upon the president to form a government, the court presented the following strange reasoning:

“…it was stated in United Democratic Movement v President of the Republic of South Africa and Others that ‘Courts are not ...  concerned with the motives of the Members of the Legislature who vote in favour of particular legislation..."

In conclusion, the Court ruled that in terms of section 57 of the Constitution, the Assembly is the master of its own internal arrangements, proceedings and procedures. It is within the power and privilege of the Assembly to amend the Rules to provide for voting by secret ballot. Furthermore:

“The absence of a specific rule providing for voting by secret ballot appears to be a deliberate choice and not an omission or oversight in the formulation of the Rules. The approach adopted by the Constitutional Court in Mazibuko was that while the court will not prescribe to the Assembly how to formulate its rules, it will give effect to the duties placed on Parliament by the Constitution. The Constitutional Court was specifically mindful of its judicial limits not to impose specific rules on the National Assembly. I am satisfied that a Court should not lightly impose a Rule to regulate parliamentary procedures unless it is required to fulfil a constitutional requirement.   

It is not within the authority of this Court to introduce the element of a secret ballot in instances other than those prescribed by the Constitution. The Court is not mandated to prescribe to the National Assembly on how to conduct its voting procedures. … In my view the effect of granting the relief sought in respect of voting by secret ballot would offend against the provisions of s 57 of the Constitution as well as the doctrine of separation of powers in that it would in effect amount to the court formulating rules for the National Assembly.”

The Court’s judgment can be criticised in the following respects: First, despite the fact that Rules 77 to 93 do not deal with a secret ballot at all, the Court should have noted that Rules 8 and 9 which deal with the election of the president, speaker and deputy speaker also do not refer to a secret ballot although this is constitutionally prescribed. These rules do in fact cross-reference sections 52(2) and (3) and section 86(2) with regard to voting procedures, and this cannot be interpreted as an “absence” of the regulation of secret ballots at all. Secondly, one can hardly argue that a lacuna in the Rules is based on a “deliberate choice and not an omission or oversight in the formulation of the Rules”. The dismissal of the speaker and deputy speaker is not regulated by the the Rules of the Assembly at all. This could hardly be interpreted to be as a deliberate choice. It is more likely that it was an oversight to regulate that according to the applicable constitutional norms. Thirdly, the election of the president to legitimise a government on behalf of the elected representatives of the people and the withdrawal of their confidence in the administration of the president cannot be put on a par with the ordinary business of parliament which must be conducted openly and transparently, with decisions taken by open ballot. This is obviously applicable to the passing of legislation, but it is not applicable to the legitimising the president to form a government and the withdrawing of that confidence. The reference to the UDM case is therefore out of context because that case deals with the adoption of legislation. Finally, the court ignored the rule that was laid down in Masethla’s case where the procedure for appointment is also implicit to the procedure for dismissal. In this case, the constitutional norm is obviously of a higher ranking and must take precedence. DM

Loammi Wolf is a constitutional law specialist who runs the initiative Democracy for Peace

  • Loammi Wolf
    Loammi-Wolf.jpg
    Loammi Wolf

    Loammi Wolf is a constitutional law specialist who runs the initiative Democracy for Peace.

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