August 22, 2017

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Secret Ballot for President Zuma’s Upcoming No Confidence Vote

The speaker of the National Assembly chamber of the South African parliament, Baleka Mbete, ruled that tomorrow’s vote on the motion of no confidence in President Jacob Zuma would be conducted by secret ballot. Most of the country’s opposition parties have welcomed her ruling, viewing it as a catalyst for a different outcome. Since March 2015, three voted-on motions of no confidence in President Zuma have been quashed and five other attempts to procure a vote on such motions were scuppered by the ruling African National Congress (ANC) party

So how would a secret ballot vote enable a different outcome?

The circumstances surrounding tomorrow’s vote of no confidence are different to those surrounding previous votes of no confidence in President Zuma. For starters, the current vote was called soon after the President fired the then Minister of Finance, Pravin Gordhan and the deputy Minister of Finance, Mcebisi Jonas in an unexpected cabinet reshuffle – a move that several senior ANC officials publicly spoke out against, and which according to financial analysts was a key reason for South Africa’s credit downgrade to junk status. Further, the vote is being heard close to four months after it was originally scheduled for hearing, and numerous intervening, and unflattering, events have strengthen the opposition parties’ position.

The delay in hearing the debate was partially attributed to a Constitutional Court application moved by opposition parties, UDM (United Democratic Movement) and EFF (Economic Freedom Fighters). These opposition parties requested the Constitutional Court (the highest court in the country) to order the Speaker to conduct the vote on the motion of no confidence by secret ballot. The Speaker argued in her court papers that she did not have constitutional powers to institute a secret ballot for such vote.  The Constitutional Court declined the opposition parties’ request, stating that such an order would violate the separation of powers. Instead, the Constitutional Court, in a unanimous decision, affirmed that the speaker did have the constitutional powers to institute a secret ballot for a vote of no confidence in the President. The judgment reads: “[A]s in the case with general elections, where a secret ballot is deemed necessary to enhance the freeness and fairness of the elections, so it is with the election of the president by the National Assembly. This allows members to exercise their vote freely and effectively, in accordance with the conscience of each, without undue influence, intimidation or fear of disapproval by others…”. Bolstered by this decision, the opposition parties threatened to go to court if Baleka Mbete had refused to allow a secret ballot.

Another distinguishing circumstance is the increasing pressure being brought to bear on the President to step down from office. Marches organized by civic organizations, trade unions and opposition political parties over the past four months have drawn tens of thousands of citizens to the streets demanding that President Zuma resign. The ruling party’s alliance partners, the South African Communist Party and trade union federation, Cosatu, have publicly called for the President to step down, and have banned him from attending their respective rallies. Allegations of graft and corruption levelled against those close to the President, including his closest advisors and his sons, have not helped the President ward off the attacks against him.

Further, members of the ANC have been emboldened by public and private persona speaking out, and for the first time have broken rank calling for the President to resign. Some of the ANC members of parliament (MPs) have indicated that they would vote with their conscience (as opposed to adopting the traditional approach of toeing the party line) in the vote tomorrow. The secret ballot gives other ruling party MPs the opportunity to vote with their conscience without fear of reprisal.

The ANC has 249 MPs. For a motion of no confidence in the President to carry, the motion must be supported by a majority of the MPs (i.e. 201 of the 400 MPs in the National Assembly). The opposition parties collectively have 151 MPs in the National Assembly, and therefore need the support of 50 ANC MPs to vote with the opposition parties for the vote to carry.  Julius Malema, leader of the EFF confirmed that his party is lobbying the ANC MPs to vote their leader, President Zuma out of office. The ANC stated that it is confident that its MPs will not vote with opposition parties in the no confidence vote tomorrow.

If the motion of no confidence carries, the President and the entire cabinet must resign. The speaker of the National Assembly becomes the acting President, and the National Assembly must elect a new President from among its members at a time and on a date determined by the Chief Justice of the Constitutional Court not later than 30 days after the vacancy occurs.

A vote which many until today believed would be uneventful has suddenly become a key highlight in South Africa’s political calendar and an event in respect of which the populace keenly awaits the result – as they would ordinarily await the result of a general election.

© 2017 Covington & Burling LLP

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About this Author

Of Counsel

Deon Govender focuses his practice on project development and corporate and project finance transactions across Africa, with particular emphasis on southern Africa. His experience ranges from advising on the development and financing of renewable energy and thermal power projects and various other infrastructure assets in the transportation and telecommunications sectors. Mr. Govender’s experience additionally includes advising on financing independent power producer projects under the South African government’s Renewable Energy Independent Power Producer Procurement...

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