The South African Constitutional Court yesterday upheld an application by opposition political parties setting aside the refusal of the Speaker of Parliament to direct that a vote of no confidence in President Jacob Zuma be decided by secret ballot. The Court stopped short of ordering the Speaker to conduct a secret ballot, but gave powerful indications in the judgment that she should do so. The judgment powerfully affirms the importance of effective oversight of public office bearers – and roots the analysis in accountability to ‘the people’.

The case had its origins in a decision by the President to remove the Minister of Finance and his deputy. Immediately after their removal South Africa’s economy was downgraded by ratings agencies to sub-investment or ‘junk’ status. These events prompted three opposition political parties, the United Democratic Movement (UDM), Economic Freedom Fighters, and Democratic Alliance, to propose a motion of no confidence in the President. The UDM asked the Speaker to prescribe a secret ballot, concerned that ruling party Members of Parliament (MPs) would otherwise come under pressure. The Speaker declined, claiming she had no power to order a secret ballot. The applicants sought to persuade the Court that the Speaker not only has the power, but that she was obliged to exercise it.

A motion of no confidence, Mogoeng CJ explains, is the ‘ultimate sanction’ that Parliament can impose on the President, a ‘sword that hangs over the head of the President to force him or her to always do the right thing’. On the question whether the Speaker has the power to direct a secret ballot in a motion of no confidence, the Court noted that the Constitution is silent. The Court concluded that the Constitution leaves open both possibilities – open ballot or secret ballot – and leaves it to Parliament to decide. The Court examined the Parliamentary Rules, finding that they permit the Speaker to have a motion of no confidence decided by open ballot or secret ballot. Whether a secret ballot would be appropriate in a particular case is a ‘judgement call’ for the Speaker.

A range of factors is relevant to the decision:

• the election of the President, when contested, must be by secret ballot;
• the risk of prejudicial consequences for a Member of Parliament called upon to vote in a motion of no confidence;
• despite the proportional representation system, MPs remain entitled to vote according to conscience;
• the constitutional value of openness, in terms of which ‘the electorate is at times entitled to know how their representatives carry out even their most sensitive obligations’;
• the risk of bribery or corruption;
• whether the ‘prevailing atmosphere is generally peaceful or toxified and highly charged’.

Ultimately, the Speaker must decide on the procedure so as to ensure the effectiveness of constitutional oversight mechanisms. These mechanisms exist ‘for the advancement of good governance through quality service delivery, accountability, the strengthening of our democracy and the realization of the aspirations of the people of South Africa.’

The Court found that the Speaker was mistaken in concluding that she had no power to direct a secret ballot. But it declined to order her to do so as this would trench on the separation of powers, remitting the matter for reconsideration. However, it held that she must take the decision in accordance with the factors above. The Court strongly suggested, without saying so, that the circumstances require the Speaker to direct a secret ballot.

The ultimate conclusion of the Court is uncontroversial. In the face of constitutional provisions allowing Parliament to determine its own procedure and Parliamentary Rules granting the Speaker broad procedural powers, it is difficult to conclude that a secret ballot is precluded.

However, taking a longer lens, the judgment may in time be seen as impelled by the current political crisis, but as creating its own constitutional risks. The Court’s judgment in UDM speaks to the calls by ‘the people’, who feature so prominently in the judgment, for the President to be held to account. However, the judgment may in time be shown to have diminished the openness of parliamentary proceedings and the role of political parties in South Africa’s proportional representation system. If the vote of no confidence happens in secret and succeeds, this case will have made constitutional history. However, it is not difficult to imagine a further, not-too-distant chapter of history – when parliamentary proceedings by secret ballot frustrate calls for accountability on questions such as campaign finance and political parties struggle to hold the whip line on populist calls to roll back human rights protections. The Court may in future be required to tip the balance back, away from secret ballots by free-agent parliamentarians towards greater openness and political party control. These are difficult questions for an evolving constitutional system, to which the judgment in UDM makes a significant contribution.

Editor’s Note: Oxford Pro Bono Publico provided assistance with research into comparative parliamentary procedure to the Council for the Advancement of the South African Constitution, the First Amicus in the case.