Like the proverbial cat with nine lives, South Africa’s scandal-ridden president, Jacob Zuma, may well have escaped yet again with his political life. This despite another resounding loss in the country’s highest court.
The Constitutional Court ruled that there was no constitutional bar to the Speaker of the National Assembly, Baleka Mbete, opting to employ a secret ballot in a no confidence vote in parliament. She’d originally asserted that she didn’t have the authority to make this decision, prompting several opposition parties – furious at Zuma’s increasingly dictatorial project of “state capture” – to take the matter to court.
South Africa’s judicial system continues to hold firm. This is despite the fact that there appears to be a concerted and well coordinated campaign by a group of politicians and businessmen to undermine the integrity of state institutions as well as to exploit their weaknesses to prosecute a project of self-enrichment and rent-seeking. The campaign is pivoted around the now notorious Gupta family.
Zuma has been brought to book repeatedly by the courts. In March last year, the Constitutional Court found that Zuma, as well as parliament, had violated the Constitution. It did so by failing to defend and uphold the constitutional authority of South Africa’s ombud – it’s Public Protector – who had conducted an investigation into the president’s private homestead, Nkandla. She found that Zuma and his family had unlawfully benefited. He was required to pay back nearly R8 million to the state. Yet, following a half-baked apology, Zuma held onto power.
In parliament he’s survived a number of no confidence votes mounted by the opposition. He also dodged two such attempts in the national executive committee of his own party, the ruling African National Congress (ANC) – one in November last year and most recently in late May. He’s been backed by an increasingly slender yet sufficient number of loyalists and nationalists for whom Zuma provides political cover for their populist and self-serving call for “radical economic transformation”.
The tipping point for the latest legal skirmish was Zuma’s reckless and apparently self-interested decision to fire South Africa’s widely respected minister of finance, Pravin Gordhan, on 30 March this year.
Despite a cold war with Zuma, Gordhan had held the line against “state capture” for 15 months after his reappointment in December 2015. And so as night follows day, Gordhan’s removal precipitated an immediate ratings’ agency downgrade. The downgrade added further pressure to an already weak economy, undermining any prospects of economic growth to address the high levels of unemployment and inequality that threaten its precarious social stability.
Once again, in response to Zuma’s ill-considered cabinet reshuffle, the largest opposition party, the Democratic Alliance, tabled a motion of no confidence in the national assembly. There has been an apparent shift in attitude in the ANC’s parliamentary caucus suggesting that the no confidence vote might have a chance of succeeding. Many ANC MPs are now anxious about the party’s prospects at the 2019 national election and their own political future.
But there’s also concern over Zuma’s apparent hold over many backbench MPs. Many of them fear retribution and expulsion should they vote against the president. If an MP ceases to be a member of the party on whose list they stood at election time, they automatically lose their seat in parliament.
Because of this one of the smaller opposition parties, the United Democratic Movement, requested the speaker to use a secret ballot to enable MPs to vote with their conscience. Mbete, who is also the national chairperson of the ANC, refused. She claimed that she did not have the power to make the decision.
The Constitution is unclear. It provides for the president and the cabinet to be removed by the national assembly by a bare majority following “a vote”. In the secret ballot case, the court could have interpreted “a vote” to mean “a secret vote”. Equally, however, the failure of the Constitution to specify a secret ballot in the case of a no confidence vote could mean an open ballot was intended.
So on June 22, the Constitutional Court took neither route. It held that,
the Constitution could have provided for a vote by secret ballot or open ballot. It did neither.
Rather it held that,
the national assembly has … in effect empowered the Speaker to decide how a particular motion of no confidence in the President is to be conducted.
Accordingly, the Court set aside the Speaker’s decision that she lacked constitutional power to order a secret ballot. Notably, Zuma had entered the proceedings to argue, like the Speaker, that there was no power to order a secret ballot and no need to do so.
The court pointedly observed that Mbete has “an enormous responsibility” to ensure that when she decides whether on a “situation specific” case-by-case basis a secret ballot should be employed. She should do so on a “rational and proper basis”, with due and careful regard to a purpose of the no confidence vote. Importantly, the court noted that the primary duty of MPs is to the Constitution and not to their parties.
The implication is that the ability of MPs to vote with their conscience in such a situation is clearly a factor that the speaker should take into account when making her decision. Some critics will regard the court’s “guidance” as insufficiently precise. But the court was clearly anxious not to encroach on separation of powers – perhaps mindful of the virulent claims from some quarters of “judicial over-reach”.
Mbete will have to choose between her loyalty to her president as one of the ANC’s “top six” leadership and her duty to the Constitution as speaker.
Later on the same day of the judgement Zuma was answering questions in parliament. Judging by his typically thick-skinned signs of confidence, the president is not unduly perturbed by the court’s ruling.
While the court stated the power to decide on whether to hold a secret ballot or not should “not be exercised arbitrarily or whimsically”, Zuma has already made it clear that he expects Mbete to decide that a secret ballot is inappropriate or unnecessary.
Parliament returns after its current mid-year winter recess in August. If Mbete once again declines to hold a secret ballot, her decision will, in turn, then be subject to judicial review application. In due course the court could be forced to order her to hold a secret ballot.
So despite the Constitutional Court judgment, and the lucidity of it’s reasoning, a no confidence vote held with a secret ballot is still some way off. Until then, Zuma lives to fight another day.
But with every day passing, December’s ANC national elective conference gets closer. Then Zuma’s term as president of the ANC expires. Then his power will decline potentially decisively.
One way or another, Zuma is running out of political lives.
Richard Calland, Associate Professor in Public Law, University of Cape Town