NEWS & ANALYSIS

Secret ballot: Which way will the ConCourt rule?

Michelle Toxopeüs says Chief Justice Mogoeng has said the task of conceptualising the issues is taxing

Will the Constitutional Court Rule in Favour of a Secret Ballot?

May 18, 2017

On 15 May 2017, a full bench of the Constitutional Court heard from no less than ten counsel on whether the Constitution or the Rules of the National Assembly requires, permits or prohibits a vote of no confidence to be conducted by secret ballot.  This brief summarises the primary issues that were argued before the Court.

Introduction

The Speaker of the National Assembly, when requested by the United Democratic Movement (UDM) to conduct a vote of no confidence by secret ballot, replied that she did not have the authority in law or in terms of the Rules of the National Assembly (Rules) to determine that a vote of no confidence be conducted in that manner.  In response, the UDM filed an urgent application with the Constitutional Court for an order declaring that the Constitution requires, alternatively permits, motions of no confidence to be decided by secret ballot.

The question seems simple enough at first: Does the Constitution or the Rules require, permit or prohibit the use of a secret ballot in a vote of no confidence?  But the complexities of the matter bear witness when even the Chief Justice, after thanking counsel for their help in clarifying the issues, admitted that the task of conceptualising the issues was challenging.  Although the parties raised several arguments, four issues dominated oral arguments before the Court, including (i) the question of separation of powers; (ii) the omission of an explicit provision for a secret ballot; (iii) how the purpose of the National Assembly’s oversight function is best served; and (iv) whether a secret ballot would hurt democratic practice in the National Assembly.

Issues before the Court

As would be expected from a case involving another sphere of government, particularly in these circumstances, much debate surrounded the issue of separation of powers.  The Court questioned whether it would be encroaching on the Executive or Parliamentary domain in deciding the matter.  The UDM did not think so.  It couched the matter as a clear interpretative exercise that does not involve any judicial overreach.  In essence, the UDM argued that the Constitution has always required a secret ballot in a vote of no confidence firstly, because it is a constitutionally permissible method of voting; and secondly, it is used in voting a President into office to protect the voter against the risk of intimidation – and should therefore be used in this case for the same purpose.  Effectively, the UDM contended, the Court would simply be giving effect to that which the Constitution has always provided.  The Council for the Advancement of the South African Constitution (CASAC), a friend of the Court,[[1]] also emphasised that the Court would not be breaching separation of powers as it would merely be creating the conditions for Parliament to exercise its oversight function effectively.

However, the Inkatha Freedom Party (IFP) and the President thought differently.  While the IFP acknowledged that the question of the separation of powers was implicated, it argued that it was in the interests of justice for the Court to decide the matter.  The President, on the other hand, argued that because neither the Constitution nor the Rules explicitly provide for a secret ballot, the Court was not permitted to decide the matter.  In effect, the President’s contention is that the only constitutionally mandated way to deal with the matter is for Members of Parliament to approach the Rules Committee if they want to have a vote by secret ballot and thereby initiate the process of debating a change to the Rules.

This raised the question whether the drafters of the Constitution deliberately omitted the use of a secret ballot in votes of no confidence or whether its absence was a mere oversight.  This is in the light of several constitutional provisions that explicitly provide for the use of a secret ballot, including a provision that allows Members of Parliament to elect a President in the first sitting of the National Assembly after a national election.  The Court questioned why the Constitution specifies the use of a secret ballot when electing a President, but fails to expressly provide for it in a vote to possibly remove the President.

The UDM argued that an omission of a secret ballot in the relevant constitutional provision does not mean an exclusion.  Such an interpretation, according to the UDM, would leave the provision “toothless” as the risk of intimidation of Members of Parliament in an open vote would lead to illogical and oppressive results.  The element of risk was pointed out to be particularly high in motions of no confidence of this kind as it could result in the resignation of not only the President but also the Cabinet.  Several parties arguing for the secret ballot placed reliance on this aspect.  The President, however, argued that the element of risk could not be brought into the interpretative question in this case as neither the Constitution nor the Rules allowed for it.  As a result, the Court should respect the exclusion of a secret ballot as giving effect to the constitutional principle that Parliament is the master of its own processes.

This was also true for the Rules, which the President maintained did not provide for a secret ballot.  On this point, while the Speaker initially argued that the Rules did not provide for a vote of no confidence to be conducted by secret ballot, her counsel later conceded that there is a fair assumption that the Rules provide the Speaker with a discretion in this regard.

Although the parties acknowledged that the Constitution and the Rules do not expressly provide for a secret ballot, the question before the Court was how the National Assembly’s obligation to oversee executive action is best served in the absence of such an express provision.  Parties arguing for the secret ballot emphasised the fact that a motion of no confidence is perhaps the most important mechanism used by Parliament to hold the executive accountable.[[2]]  To this end, a secret ballot would be the only means to achieve an authentic, free vote and thereby truly hold the executive to account.  The President was adamant that the National Assembly can still fulfil this function by using an open ballot.

Concerns over the National Assembly’s oversight function were weighed up against a greater concern as to whether it would be anti-democratic to have Members of Parliament voting in secret, particularly when viewed against the constitutional values of openness and accountability.  This concern was a significant factor that led to some parties arguing for an interpretation that the Constitution and the Rules confer a discretion on the Speaker to conduct a vote of no confidence by secret ballot rather than the Constitution requiring all votes of no confidence to be by secret ballot.  This discretionary power would create the necessary balance between the values of openness and accountability and National Assembly’s oversight function.

Conclusion

When commencing with argument, the UDM remarked that the question before the Court was a crisp issue analogous to a multiple choice examination question – whether a secret ballot is (a) required; (b) permissible; or (c) prohibited.  The almost ten-hour hearing, with spirited debate between counsel and the bench, proved that it is not that simple.  The Constitutional Court will be well aware of its obligations in relation to the doctrine of separation of powers and the other issues brought up during oral argument.  The courts are no strangers to these difficulties as they are increasingly approached for guidance and interpretation on executive and parliamentary rights and duties in terms of the Constitution.  This case is no different.  We now await the Court’s judgment.

Michelle Toxopeüs

Legal Researcher, Helen Suzman Foundation.

This article first appeared as an HSF Brief.


[1] The Unemployed Peoples Movement, the Institute for Security Studies and the Shosholoza Progressive Movement were also joined as friends of the Court.

[2] As stated by the Constitutional Court in Mazibuko v Sisulu and Another [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) at para 44.