CAPE TOWN. – National Assembly Speaker Baleka Mbete and President Jacob Zuma yesterday filed papers in the Constitutional Court responding to an application from the United Democratic Movement on the motion of no confidence.
President Zuma said there is nothing in the Constitution that suggests a president must be elected or removed by way of a secret ballot.
Responding to a Constitutional Court application by the UDM, President Zuma questioned involving the court in the motion of no confidence against him, which was initially due to be debated on Tuesday, April 18.
“There is no implied or express constitutional requirement for voting by secret ballot for a motion of no confidence. The applicant (UDM) further asserts that the absence of a secret ballot undermines the purpose of the no confidence motion. I deny this is so,” the president said in his affidavit.
Responding to the UDM’s assertions that there was no possibility of a motion of no confidence succeeding without a secret ballot, President Zuma said the applicant could not resort to judicial intervention where the majority party legitimately exercised its rights and powers. “As a matter of fact, that is the advantage of enjoying a majority in Parliament and that is how the mandate of the majority is carried out by the majority party,” Zuma said.
He said the fact that a motion of no confidence, for example, required the support of the majority to succeed did not mean that it was unconstitutional.
“The applicant in effect requires this honourable court to subvert the rights of the majority party in Parliament, denying the ruling party the benefit of its majority status. This, I submit, is a self-serving interpretation and if permitted would undermine the will of the electorate that elected the party into Parliament and would be unconstitutional,” he said.
The president also touched on the separation of powers, telling the court that the National Assembly was responsible for the business of Parliament.
On the party discipline principle, President Zuma said the applicant built its case on the notion that the party discipline constituted intimidation and that should be considered by the court in making its determination.
“Members elected on party lists who are allocated to legislative bodies under a system of proportional representation are accountable to their respective parties and Parliament. The party is accountable to the electorate,” he said.
This obligated members of a party to remain loyal to such party consonant with the expectations of voters who gave their support to the party.
The obligation of loyalty to a party is not inimical to the notion of an accountable, responsive, open and democratic government, he said, and the ANC was not in a different position to this.
“Under normal circumstances, a court would not normally intervene in the internal domestic affairs of a voluntary organisation,” President Zuma said in his affidavit.
He also raised the issue of urgency, as the motion of no confidence had now been postponed.
“Should the applicant still insist that the application be heard as one of urgency, I reserve the right to contest urgency upon the hearing of this application.” He asked for the application to be dismissed with costs.
In her papers, Mbete indicated that she is personally not adverse to a motion of no confidence using secret ballot voting.
“I have no authority to accede to the request,” she said.
Mbete also said she believes there are no exceptional circumstances warranting the UDM direct access to the Constitutional Court, .
Furthermore, the UDM had not exhausted other alternatives before approaching the court with an application for a secret ballot in the motion of no confidence against President Jacob Zuma, she said in an affidavit filed yesterday. The application had no merit and it did not fall within the court’s exclusive jurisdiction, she said.
On Wednesday, the court allowed the UDM direct access to argue its case. It gave parties wishing to oppose the UDM’s application until 12:00 noon to file papers, and the UDM until 16:00 next Wednesday to file its reply.
“It is calculated to embroil this court in political controversy in a matter that involved a violation of the principle of separation of powers and it is grounded on the assumption that the members of the NA‚ particularly the African National Congress‚ are weak-kneed‚ timid‚ cowardly‚ unprincipled and spineless persons‚ which assumption I am not prepared to make,” Mbete said.
The high court had jurisdiction to determine the case, she said.
Mbete said granting the relief sought by the UDM would constitute an infringement of the principle of the separation of powers. “It is not the function of the court to introduce the requirement for a secret ballot. It is not for the courts to be concerned with political questions.”
The debate has since been postponed to allow the Constitutional Court process to finish.
Parliament’s second term starts on May 2. – News24/HR.