Legal debate: Does Mbete have the power to hold a secret ballot (or not)

The United Democratic Movement (UDM) has until the close of business on Wednesday to file responding papers in its Constitutional Court application for a secret ballot in a motion of no confidence in President Jacob Zuma.

The vote due to take place on 18 April was postponed because of the legal action.

READ: Opposition parties request postponement for motion of no confidence

Last week, Zuma and parliamentary speaker Baleka Mbete filed a response to the UDM's application, stating that the opposition party's case has no merit.

Mbete said she does not have the power to allow a secret ballot, neither does the Constitution. The President has argued it's highly speculative for the party to suggest that ANC MPs are being intimidated to not vote against him.

ALSO READ: Baleka Mbete and President Zuma oppose UDM's secret ballot vote in Parliament

Eusebius McKaiser spoke to Prof. James Grant, Associate Professor of law at the University of the Witwatersrand, Prof. Pierre De Vos, Constitutional Law expert and Tyrone Maseko, Criminal Lawyer.

The panel looks at what steps the opposition can take in ensuring Mbete’s discretion to rule that the usual open ballot system be used.

Maseko looks at the dilemma that the UDM currently faces.

The provision that deals with the removal of the President or a vote of no confidence, nowhere does it say that it has to be held by secret ballot...Now the question is how should this voting take place? Then we have to refer back to the provisions of the Constitution and if the Constitution is silent on it, we look at the rules.... In those rules, is there provision for this? Doesn't seem that there is, and that is the dilemma that the UDM faces.

Tyrone Maseko, Criminal Lawyer

I don't believe Baleka Mbete has a discretion necessarily to decide whether to hold a secret ballot or not.

Tyrone Maseko, Criminal Lawyer

But while Maseko argues that he does not believe Baleka Mbete has the discretion to decide whether to hold a secret ballot or not, De Vos disagrees. He says the court will find that the Parliamentary Speaker does indeed have such discretionary powers.

I cannot imagine that the court is not going to find that she does have a discretion... I am far more skeptical about the meaty substantive argument about whether the court will force the Speaker to have a secret ballot because it is not explicitly stated in the Constitution.

Pierre De Vos, Constitutional Law expert

About whether the court will force the Speaker to have a secret ballot....that argument is not going to be sustained. The constitution specifically says that parliament is supposed to decide its own process.

Pierre De Vos, Constitutional Law expert

Grant says an obligation of the Speaker of Parliament to protect MPs may influence the Constitutional court's decision.

The argument could be made on that basis that there is a very real risk of intimidation and reprisals if she doesn't opt for a secret ballot.

James Grant, Associate Professor of law at the University of the Witwatersrand

Click on the link below to listen to the full interview and an insightful explanation as to why Mbete may have to use her discretion in this case....


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