Brett Horner: ConCourt ruling on secret ballot puts Mbete on spot

Brett Horner

Thursday’s Constitutional Court judgment endowing the speaker of parliament with the discretion to call for a secret ballot in a motion of no confidence against President Jacob Zuma was claimed as a victory by both sides of the divide.

Opposition parties, in favour of a closed ballot, read the ruling as vindication for their determination to remove Zuma.

The president’s loyalists had a slightly altered view of the unanimous judgment, simply because the court refused to compel a secret ballot outright.

At the risk of overreaching into parliament’s executive realm, and to sanctify the separation of powers doctrine, Chief Justice Mogoeng Mogoeng, with his bench concurring, set aside Mbete’s refusal to consider a secret ballot.

The judges, instead, bestowed on her the prerogative to choose.

At the same time, though, the judgment was so crafted that any refusal by Mbete to sanction a secret ballot in this case would look like nothing short of an irrational decision.

As for who won on the day, you need only consider the cost order against the president and the speaker to put an end to that little sideshow.

Several interesting possibilities arise from this latest Constitutional Court ruling, which, as an aside – and speaking to either the ignorance of, or contempt for, the law by our legislators – is increasingly being called upon to adjudicate matters of government and parliament.

Mbete, with her back to the wall and obviously partisan in her approach, will want an open vote. Zuma himself expects nothing less, as he told the National Assembly only hours after the judgment.

But dare Mbete ignore the weight of the Constitutional Court’s counsel?

She shouldn’t, and in fact, seen from a different perspective, it affords her perfect protection.

She can claim she had little choice but to heed the wisdom of the highest court in the land.

Assuming, then, Mbete permits a secret ballot, it puts Zuma’s critics on the spot somewhat.

Some ANC MPs have been vocal in calling for change. Unanimous support for Zuma from the ANC side of the house would weaken these dissidents.

But there are undoubtedly other change agitators who have been more guarded.

A secret vote would present them with a golden opportunity to use their voices silently, so to speak.

So far, though, the ANC caucus has been solid on previous ouster attempts against Zuma, and its leader Jackson Mthembu, speaking shortly after the judgment, was confident of a repeat.

He will be the one to remind its MPs why they need to toe the line.

However, and I’ll stick my neck out here, expect a smattering of party faithful to vote against Zuma if the ballot is secret.

Alternatively, watch out for some very creative sick notes and apologies from the ruling benches.

Abstention by absentia!

Zuma is deeply unpopular but I think he’s got this.

The ANC has made it clear: only through its internal processes will succession take place.

That mantra seems to be holding.

Also, don’t forget that if a no confidence motion against Zuma passes, then his entire cabinet, including deputy ministers, must resign.

As we know, Zuma has beefed up his cabinet numerically while padding key portfolios with his lackeys.

If he goes, a lot of well-paid but undeserving lieutenants depart with him, too.

What may become more of a factor in time to come is the judicial commission of inquiry into state capture, announced by Zuma on Thursday.

Zuma is already contesting former public protector Thuli Madonsela’s recommendations in her State of Capture report, one of them calling for a similar commission to be headed by a judge appointed by . . . Mogoeng.

Which one will we get?

For credibility’s sake, I know which one we need.

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