‘Democracies are shaped by precedent – “once off” exceptions usually become part of the political furniture’
By STEVEN FRIEDMAN
Relying on one event to change a country usually ends in tears – particularly when you pin so much on it that you endanger your future.
The event on which many in the South African mainstream are pinning their hopes is the motion of no confidence in President Jacob Zuma proposed by opposition parties and scheduled for August 8.
Zuma’s governing African National Congress has a comfortable parliamentary majority and seven previous no confidence votes have failed: but this one has taken on almost mystical significance among opposition parties and citizens’ groups that oppose Zuma and commentators.
One opposition politician, Julius Malema, claims enough ANC legislators support the motion to assure a majority. While others don’t go that far, they hint that it could succeed. But there is a catch: the motion will only pass, they say, if representatives can vote in secret, which needs the help of the courts.
What they want Parliament – and the courts – to do would damage South African democracy. But, they insist, so important is the no confidence vote that it’s worth bending the rules – once only – to win it.
This ignores reality. Democracies are shaped by precedent – “once off” exceptions usually become part of the political furniture. And so it is good news for democracy that they won’t get what they want – the “make or break” no confidence vote is likely to be a damp squib and this means that the assaults on democracy which accompany it probably will not happen.
Why elected officials shouldn’t vote in secret
Democracies don’t allow elected representatives to vote in secret. Citizens are entitled to a secret vote because they speak only for themselves: their votes are no one’s business. Elected representatives speak for voters – their votes are everyone’s business. And it’s easier to buy a lawmaker’s vote if the public doesn’t know which way they voted.
The stated reason for suspending openness is that MPs are being intimidated to oppose the motion: Makhosi Khoza, an ANC MP who plans to vote against Zuma, has been threatened with violence and some opponents of the president’s faction in the ANC have been shot. But if people want to kill politicians who vote a particular way, they can find out which way they voted in secret. If a judge were threatened with violence to influence a judgment, democrats would not insist she ruled in secret. They would protect her so she can judge in public.
But much of the “intimidation” is simply normal politics. The threats lawmakers are said to face is losing their seats by bucking party discipline. Whether MPs should vote the party line is an important debate. But democracy would cease to be democratic if MPs were guaranteed their jobs. Parties, as well as voters, can remove them.
Bending the rules
Opposition parties have turned to the courts. The problem is that the courts aren’t being asked to interpret law – they’re being asked to defeat Zuma.
First, the opposition parties that took the secret ballot issue to court were expecting the judges to order parliament to hold a secret ballot, destroying the principle that the legislature is responsible to voters, not judges. The judges refused, leaving the decision to Parliament’s speaker.
Now the opposition Economic Freedom Fighters says that, if the speaker doesn’t allow a secret ballot, they will ask the court to declare that she acted irrationally and to overturn her decision.
It is fashionable to want courts to declare irrational decisions opposition parties don’t like: parties have also asked the courts to declare a recent cabinet reshuffle irrational. But who occupies elected positions and how parliament votes are a matter for voters, not courts. The courts are not going to overturn election results because some people don’t like the winning candidate and, since the principle is similar, they won’t apply legal tests to political decisions.
There is a great irony in these attempts to override democracy to get rid of Zuma. They are almost certainly futile since there’s little prospect the vote will remove him, even if it is held in secret. The motion may not be debated at all – it could be snarled up in court challenges demanding a secret ballot. If it is, at least 53 ANC MPs would need to support it and it’s hard to see that happening.
Those who want a secret ballot say many ANC lawmakers want Zuma gone but are reluctant to support the motion because they need their jobs. Secrecy, they say, would allow them to vote for the motion. Many MPs do need the income, but that’s not the only factor at play.
The ANC spent much of its life as a beleaguered movement and so loyalty to it is an important part of its ethos: voting for an opposition motion of no confidence goes against that ethos’s grain and this may matter even if MPs can keep their jobs. This is why the South African Communist Party, which wants Zuma gone, is not telling its MPs to support the motion. Zuma’s ANC opponents are more focused on winning control of the organisation at the end of the year (when they may well remove him) than in getting him out now. So excitement about the vote misreads ANC politics by remaking the party in the image of those who comment on it.
The vote will not change politics by removing Zuma. It also won’t change the role of the courts because the Constitutional Court has signalled that it knows the limits of its power. Unless the speaker sets democracy back by allowing a secret vote, the no confidence vote may leave the country exactly where it was before it started.
This is not ideal but is a great deal better than the costs of suspending long-term principle for short-term gain.
This article first appeared in The Conversation