ConCourt finds Mbete has power to prescribe secret ballot

The Constitutional Court says National Assembly speaker Baleka Mbete has the power to decide on a secret ballot.

An application by the United Democratic Movement (UDM) to hold a secret ballot in a motion of no confidence against President Jacob Zuma was filed in May.

The debate around a fifth motion of no confidence after Zuma’s controversial Cabinet reshuffle was postponed by National Assembly Speaker Baleka Mbete awaiting the outcomes of the the court case.

At the time, Mbete said she had no power to decide on secret vote.

Chief Justice Mogoeng Mogoeng says the rules of the national assembly allow it to pass a motion of no confidence by vote and that it can determine which way they want to vote.

The national assembly is at large to exercise its section 57 powers.

Mogoeng Mogoeng, Chief Justice

The national assembly therefore has the power to determine whether voting for a motion of no confidence will be by open or secret ballot.

Mogoeng Mogoeng, Chief Justice

Through its rules it has in effect empowered the speaker to decide how a particular motion of no confidence in the president is to be conducted.... but as to when a secret ballot would be appropriate is an eventuality that has not been expressly provide for and which then falls on the speaker to determine. It is her judgement call to make having due regard as to what would be the best procedure.

Mogoeng Mogoeng, Chief Justice

While a secret ballot has been identified as the best voting mechanism, Mogoeng says the potential risk of an open vote would depend on the motivation for a motion of no confidence.

Openness is one of our foundational values and the assemblies internal arrangement, proceedings and procedures are required by the constitution to have due regard to the need to uphold the value of transparency in carrying out the business of the assembly. The electorate is at times entitled to know how their representatives carry out even some of the most sensitive obligations such as passing a motion of no confidence, they are not supposed to always operate under the cover of secrecy.

Mogoeng Mogoeng, Chief Justice

Considerations of transparency and openness sometimes demand a display of courage and the resoluteness to boldly advance the interests of those they represent no matter the consequences including the risk of dismissal for non compliance with the party's instructions.

Mogoeng Mogoeng, Chief Justice

The power to decide whether a motion of no confidence is to be resolved through an open or secret ballot cannot be used illegitimately or in a manner that has no regard to the surrounding circumstances that ought to inform its exercise, it is neither for the benefit of the speaker nor his or her party.

Mogoeng Mogoeng, Chief Justice

The power that vest in the speaker to determine the voting procedure on a motion of no confidence belongs to the people and must not be exercised arbitrarily or whimsically.

Mogoeng Mogoeng, Chief Justice

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