There are dangers behind giving South African MPs the right to a secret ballot

South Africa’s Chief Justice Mogoeng Mogoeng making a ruling on secret ballots in Parliament at the Constitutional Court in Johannesburg.
Siphiwe Sibeko/Reuters

Marius Pieterse, University of the Witwatersrand

It happened as many suspected it would. South Africa’s Constitutional Court ordered that, despite the Constitution’s silence on the matter, the speaker of parliament has the constitutional power to prescribe that a vote on a motion of no confidence in the country’s president may take place by way of a secret ballot.

It also found that Baleka Mbete, the speaker of South Africa’s parliament, was mistaken when she decided earlier this year that she did not have this power. The court set aside her decision.

But the court didn’t go as far as the United Democratic Movement, and other opposition parties that had challenged Mbete’s decision, had hoped. It would not force Mbete to order a secret ballot in the upcoming motion of no confidence in President Jacob Zuma. It felt that this would go against the separation of powers, by unduly prescribing to parliament how it should carry out its functions.

Accordingly, the court ordered Mbete to retake the decision on whether to allow the secret ballot. It emphasised that in doing so, she must act rationally. It ordered that she has to take account of all surrounding circumstances, including the possibility that MPs may feel intimidated by their political parties to vote in a particular way.

The court emphasised that parliament has a constitutional obligation to hold the executive to account. Members must therefore act in accordance with their constitutional obligations, their consciences and their oaths of office.

From a constitutional law perspective, the court’s stance is undoubtedly correct. As always, it has shown great respect for parliament’s power to guide its own processes. At the same time, the court has clarified the extent of the speaker’s discretion in a way that aims to ensure that she, and parliament as a whole, exercise their powers in a way that is consistent with their constitutional obligations.

What the opposition asked for was always going to be a long shot. Wanting a court to order the speaker to exercise a discretion that is legitimately hers alone, before she has even applied her mind to the question, would involve a real stretch of the separation of powers.

So, what will Mbete decide? And will her decision, if it was to go against a secret ballot, be challenged? More pertinently, ought it?

Competing notions of accountability

Many believe that a decision not to hold the vote secretly would simply be a thinly veiled attempt to shield Zuma from accountability. Such a decision would therefore, if not irrational and unconstitutional, at least be unconscionable. But, as the Constitutional Court acknowledged, there are different, and perhaps competing, notions of accountability at stake here.

On the one hand, the dominance of the African National Congress (ANC) in parliament and its own internal structures of political accountability have seemingly compromised the constitutionally designed accountability of the executive to parliament. An open ballot could only exacerbate this.

On the other hand, a secret ballot would sacrifice MPs’ accountability not only to their party peers, but also to the country’s citizens.

How can we be assured that an ANC politician who votes differently under a secret ballot than she would under an open one is doing so based on her conscience rather than on some other, less honourable whim? What is to stop a cynical group of Democratic Alliance (DA) opposition politicians from voting in favour of retaining Zuma because they believe that his continued scandal-prone presidency would better serve the their chances in the 2019 election? Would it not make it more difficult for such politicians to subvert the public interest in these ways if the citizenry, and their fellow MPs, could see them?

Perhaps South Africa’s current political crisis is so dire that these seemingly far-fetched hypotheticals don’t matter. Perhaps they represent bridges the country should cross sometime in the future.

But making rules (and rulings), especially for the naughty kid in class, is seldom wise.

South Africa is moving into an era in national politics where the ANC is not nearly as dominant. This means that coalitions will be the order of the day. In this new era, one or two votes in a parliamentary motion may make all the difference. Will the country still think secret ballots were such a good idea?

Danger of destabilisation

Early in June DA mayor Michael Holenstein was removed by a motion of no confidence through a secret ballot in Mogale City, west of Johannesburg. Both the motion and the secret ballot were called for by ANC councillors. The ballot was granted by the ANC-affiliated speaker.

The DA and their coalition partners unsuccessfully opposed the secret ballot. As it happened, the secret ballot provided the opportunity for one of their own to betray the coalition and led to the motion being carried with 39 votes to 38.

Near-comical irony and intrigue aside, this saga illustrates all too vividly how the diminished accountability (to both electorate and party-political peers) afforded by a secret ballot opens motions of no confidence not only to a politics of conscience, but also potentially to one of backstabbing and pettiness.

On top of this, governance in Mogale City is said to be suffering as a result of the successful motion. There are fears that service delivery is being paralysed and that the destabilised, hung council may be put under administration.

The consequences of a motion of no confidence in the president will, of course, be far more destabilising. For one thing, Section 102 of the constitution requires the entire cabinet to resign alongside the president, should the motion pass. A member of parliament deciding how to vote on a motion of no confidence in Zuma is therefore also deciding whether to throw the entire national government into disarray, however temporarily.

This might well be preferable over another day of a patently compromised, Zuma-led government. But there is value in ensuring that such a hefty decision is made only after due deliberation, and is made openly and with courage of conviction. If such courage should prove to be lacking in the members of the majority party, should South Africans not be allowed to see this and to think, in turn, about the vote that in a constitutional democracy can and should matter far more: their own?

Marius Pieterse, Professor of Law, University of the Witwatersrand

This article was originally published on The Conversation.

A public protector's job is to make sure people stick to the law - not to change it

Busisiwe Mkhwebane, the public protector of South Africa.
EPA/Nic Bothma

Cathleen Powell, University of Cape Town

South Africa’s Public Protector Busisiwe Mkhwebane has directed a parliamentary portfolio committee to initiate proceedings to amend a clause in the country’s Constitution that sets out the primary aim of the country’s Reserve Bank.

As many commentators have pointed out, the Public Protector cannot order that the Constitution be amended. It is not part of her job and it’s outside her powers.

The Constitution gives the Public Protector the task of investigating

any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice.

The focus of her investigation is thus conduct. This is underscored and fleshed out by the Public Protector Act. The Act empowers her to investigate, among other things: maladministration, abuse of power, dishonest acts or omissions, improper enrichment, and acts or admissions which result in unlawful or improper prejudice to any other person.

In this case, the Public Protector claimed to approach her investigation by asking two questions: what happened? And, what should have happened?

The first is a question of fact. But to answer the second question she notes that the focus moves to

the law or rules that regulate the standard that should have been met by the government or organ of state to prevent maladministration and prejudice.

In other words, it is the law that provides the points of reference which tell her whether the banks and government’s acts or omissions constitute misconduct.

But what the Public Protector wants to do is to change the law itself. She is not satisfied with determining whether the Reserve Bank and government obeyed the relevant, current rules: she wants to write new ones.

Indeed, her recommendation goes well beyond changing individual rules to overturning their very foundation, anchored in the Constitution. She has ordered that a major decision of the Constitutional Assembly, which drew up the Constitution following the first democratic elections in 1994, on a complex matter of economic policy, be thrown out.

This can’t be right.

No precedent

We must not be persuaded that there is any precedent for this. In her “State of Capture” report, the previous Public Protector, Thuli Madonsela, found that members of Cabinet had violated their obligations under the Constitution and the Executive Members Ethics Act by failing to prevent the misuse of state funds to upgrade the president’s private residence.

Part of her remedial action was to recommend that the secretary of Cabinet update the policy to provide ministers with more detailed guidance, and to recommend that the minister of police review the Apartheid-era National Key Points Act. This review was required to clarify the Act’s application and to bring it in line with the Constitution.

There are two major differences between these recommendations and an instruction that a constitutional provision be reworded in a specific manner.

Mkhwebane prescribed the exact wording of the new provision. She said that the clause which currently reads:

The primary object of the South African Reserve Bank is to protect the value of the currency in the interest of balance and sustainable economic growth in the Republic.

Should instead read:

The primary object of the South African Reserve Bank is to promote balanced and sustainable economic growth in the Republic, whilst ensuring that the socio-economic well-being of the citizens is protected.

This is quite a different matter. Neither of Madonsela’s recommendation sets out the wording of the new provisions, merely the goal they should achieve. And each is aimed at bringing the relevant provisions into compliance with higher laws to which they are subject – either the Executive Ethics Act or the Constitution itself. And this is because it is the job of the Public Protector to remedy specific misconduct, and the job of Parliament to make laws.

In its judgment on the Nkandla case, the Constitutional Court held that the Public Protector is subject “only to the Constitution and the law”. But she is subject to them. And the Constitution sets out a specific, thorough process for the passing of any law, and particularly a constitutional amendment.

The elected representatives of the people are meant to debate all laws and fashion them into the form they believe is best for the country. If the wording of any law is determined in advance of this process, then the process itself is rendered meaningless. The Constitution’s law-making requirements are discarded.

The Public Protector cannot throw out the Constitution. Her remedial action is therefore invalid.

Effects of the recommendation

If taken seriously, her recommendation has the potential to influence current political debates on economic development in South Africa, supporting the line advanced by groups such as Black First Land First, and reducing the independence of one of the few public bodies which has not yet been tainted by evidence of state capture.

But if this was the intention, it could backfire, because the Public Protector can bring this influence only if she enjoys legitimacy in her own right. She does not, in part due to her hostile treatment of her predecessor and a perceived unwillingness to take steps against President Zuma and his allies.

She laid a criminal charge against her predecessor on receiving a complaint from the president, and then attempted to deny the legal import of her action. Staff closely associated with the former Public Protector or the State Capture report appear to have been forced out of their jobs.

Mkhwebane could have found better ways of proving that she does not have a hidden political agenda than by producing a report which throws her legal acumen into serious doubt.

Her foray into economics is also deeply embarrassing, as she justifies a drastic change in economic policy with eight lines of text, citing no authorities in economics and no evidence that her preferred approach does in fact, uplift the poor.

Her report is likely only to reduce the standing of her own office.

Cathleen Powell, Senior Lecturer in Public Law, University of Cape Town

This article was originally published on The Conversation.

Boer Political Prisoners approach the constitutional court concerning illegality of incarceration

As early as April 2002, some of the Boeremag accused were arrested.  The record trial commenced on 19 May 2002, which would continue for the next eleven years in the High Court of Pretoria.  The main charge of which 24 people were found guilty on, was high treason.  While some received bail under the strictest conditions, eleven of them remained in custody, while bail were denied continuously.  All of them (except two who died during the marathon trial) were found guilty of high treason and were variously sentenced on 28 October 2013.  The remark of Judge Eben Jordaan that he has taken the 11 years into account, of which they remained incarcerated or under the most severe bail conditions, seemed only to be lip-service, because he sentenced some of the convicted men for another 25 years effective imprisonment.

The Boeremag men were sentenced on 28 October 2013 and found themselves for the next 4 years in a system effectively depriving them of their right to appeal.  Some of the men were not even able to launch an application of leave to appeal.  All of them who actually could launch an application of leave to appeal, had to bring the application again before Judge Eben Jordaan, who refused all the applications forthwith.  Those who’s application of leave to appeal were denied by Judge Jordaan, still struggle to launch their petition to the appeal court, but without any progress or success due to administrative red tape and lack of cooperation by government officials.  Some of the legal representatives do not even seem to get started.

After almost four years of struggling without success, Dr Lets Pretorius and two of his sons, Drs Johan and Wilhelm Pretorius, decided to petition directly to the Judge President of the Constitutional Court, Judge Mogoeng-Mogoeng.  In the petition they state that the system effectively deprive them of their right to appeal.  It includes their incarceration circumstances created by the Department of Correctional Services, the procrastination and delays caused by the unjust and mal-administration of the Legal Aid Board and the courts.  In their petition the three Drs Pretorius asked for a court order to the effect that Prof. Hercules Booysen, and Mr. Julian Knight, be appointed respectively as their advocate and lawyer by the Legal Aid Board in order for them to contest the constitutionality and legality of their incarceration.  They state that the constitution guarantees the right to appeal and the right of a judicial process which should commence and be completed without unreasonable delays.  The delays caused by the incapacity of the system effectively deprive them of these rights, which renders their trial unfair.  To be incarcerated on grounds of an unfair trial, is unconstitutional and therefore unlawful. The international standard for any court case is 10 years from arrest until all forms of appeal have been exhausted. The Boeremag trial started 15 years ago this month.

The Drs. Pretorius are currently waiting for an answer of the judge president of the Constitutional Court.

Boervin is a non-profit company which endeavour for the freedom of the Boer Political Prisoners.  We support the application of Drs. Pretorius ask the community to support this application in their prayers.  We also ask for the support of Boervin to help us by making us able to expose this injustice nationally and internationally, which still rage against the Boer Political Prisoners, in order to end this injustice, raging for 15 years already.

Published on South Africa Today

Second week of mass evictions and violent protests in Port Elizabeth

Police conduct 3am raid, arrest 12 and confiscate petrol bombs and tyres

By Joseph Chirume
21 June 2017

Residents gather to meet on Wednesday morning at Wells Estate after mass evictions. Photo: Joseph Chirume

Violent protests have continued in Motherwell following mass evictions that began two weeks ago and restarted on Monday. Hundreds of shacks were demolished in NU29 and NU30 sections this week.

The Nelson Mandela Bay Municipality recently obtained a court order instructing the office of the sheriff to carry out the evictions.

After shacks were demolished in Ikamvelihle, municipal and other vehicles were attacked and torched.

On Monday, police conducted an early morning raid at 3am and arrested 12 residents of Ehlovini settlement in Wells Estate on charges of public violence. According to the police 30 tyres, 18 petrol bombs and a five litre can of petrol were confiscated.

Protesters are demanding houses. Thokozile Soporo, whose shack was demolished in Ikamvelihle, said she has been on the housing list since 2007.

“I don’t like to live the life of a squatter. It is inhuman and very humiliating, because the place does not have toilets, water or electricity. I know of many people who applied for a house after me, but they are already living in their houses,” she said.

“The municipality should tell us the truth. We know that some of the house beneficiaries do not qualify to have houses because they are not poor people but work for government. I will wait for the police to leave this place, then I will have to rebuild again. I have lost nearly R5,000 worth of furniture and building material that the police took away from my shack,” said Soporo.

NU 29 resident Mehlo Jamu, whose shack was also demolished, said, “We fought and defeated apartheid because the government was very arrogant and treated its people like animals. What this administration is doing to its residents is not different to the apartheid administration. I have lost lots of household goods as a result of this barbaric action. I will rebuild and fight for this place. This is my home.”

Nolukho Toyo said she was deep asleep when the police kicked her door in [during the 3am raid on Monday]. “I was sleeping with my 10-year-old son,” she said. “They also fired rubber bullets while we were in the shack. In other shacks, the police pointed their guns to children and old women. I am unemployed so I cannot get the money to pay rent. I will only leave this place after the municipality has given us a better place.”

Mayor Athol Trollip said, “It is a problem when people protest about housing delivery and then turn around and stone vehicles and burn down municipal infrastructure. Nobody in South Africa has the right to assault innocent people. That’s criminal, yet people want to be treated with kids gloves.”
“We have a plan where we are going to build those houses. We cannot do that if land earmarked for this has been invaded. This is a major problem in our city. We also have many instances where people invaded houses whose owners are not there. We need to identify the land and build the infrastructure to service them. We are planning to provide 12,000 houses with title deeds over the next three years.”
Trollip said the evictions had been done with due legal process. “Evictions are carried out by the office of the sheriff with the assistance of the police. If household property is removed, it must be labelled and taken to a place where the owners can claim it back.”

Police spokesman Captain Andre Beetge said the “evictions being executed by the Sheriff of the Court in Motherwell, Ikamvelihle and Wells Estate areas have sparked violence and damages towards innocent motorists”.

Beetge warned motorists to avoid the N2 road between Bluewater Bay and the R335 off-ramp as well as the Addo road passing through Wells Estate.
He said the operation will continue until Friday.

A truck torched in the protests. Photo: Joseph Chirume

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Published originally on GroundUp .

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“This is not a place for human beings”

Blikkiesdorp was supposed to be temporary, but residents are stuck there indefinitely

By Trevor Bohatch and Ashraf Hendricks
20 June 2017

Blikkiesdorpis a bleak, treeless settlement near the end of the runway of Cape Town International Airport. Photo: Ashraf Hendricks.

Blikkiesdorp, also known as “Tin Can Town”, is found tucked away and out of sight in Delft, about a 25km drive from Cape Town’s city centre. It was meant to be a TRA, the City’s abbreviation for Temporary Relocation Area, but it has been housing residents for ten years. It consists of 1,600 to 2,000 households living in tin shacks.
“This is not a place for human beings,” says Jane Roberts, who has been in Blikkiesdorp for eight years. Before, Roberts was one of the Symphony Way pavement dwellers and lived for two and half years on the street. “The road was a good place to stay,” she says.

Jane Roberts has lived in Blikkiesdorp for eight years, even though it is supposed to be a temporary place. Photo: Ashraf Hendricks

Her home in Blikkiesdorp is tiny. A double bed takes up most of the space. She says she lives in constant fear of gangsters and break-ins. “You can’t go out. You can’t leave your house,” says Roberts. “People want to get out of here. They don’t want to live here. They say they don’t care where they are going to live, so long as they can get out of Blikkiesdorp.”
“After eight years it’s not temporary, it’s permanent,” says Roberts.

Maureen Philanders wonders where her children and grandchildren will grow up. Photo: Ashraf Hendricks

Maureen Philanders previously stayed at a shelter in Cape Town, but had to leave after three months. She relocated to Blikkiesdorp and thought that she would be here for only three years. She has been here for six years. She says her health is not good. “I’m so worried, because I think, where are the grandchildren and the children going to grow up?” Philanders asks. She lives with five children; one is her own child.
“You are not safe [here] in your own shack,” she says. Philander said she’d even considered moving into the Belhar graveyard.

Estrolitha van Ballen says crime is high and the police don’t pick the phone when you call them. Photo: Ashraf Hendricks  

Blikkiesdorp has no nearby hospital or police station. According to Estrolitha van Ballen, who has lived in Blikkiesdorp for seven years, the police and ambulance take a long time to arrive. “You phone the police, but they never pick up,” she says. “The crime is so high. During the night you can’t sleep. You must be alert.
We asked the City of Cape Town what plans it has for the residents of Blikkiesdorp, and if there’s a date for when they’ll be moved. Councillor Siyabulela Mamkeli, the City’s Mayoral Committee Member for Area Central, responded: “Any concrete proposals and information would be taken to the communities of Blikkiesdorp, Malawi Camp and Freedom Park first and at the appropriate time. We will follow our normal engagement processes.”

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Published originally on GroundUp .

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