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Here’s How President Zuma Can Walk Away With A Win From The Secret Ballot Case

The courts have learned to craft careful judgements that don’t step over the separation of powers boundary. Zuma can use this to his advantage.

17/05/2017 04:00 SAST | Updated 17/05/2017 10:42 SAST
Rogan Ward / Reuters
Jacob Zuma in 2008.

The Secret Ballot case before the Constitutional Court deals with an issue of principle, which is the question of whether or not it can prescribe a certain way in which Parliament goes about its own affairs. The context here, is that the African National Congress, or at least President Jacob Zuma and his allies, have been "under siege" on various occasions by the courts for the manner in which he has exercised his executive authority during his tenure as the head of the executive.

After listening to the arguments presented before the court on Monday, it is clear that the courts have become very circumspect when it comes to the separation of powers issue. You heard the Chief Justice Mogoeng Mogoeng saying repeatedly that no matter how the court rules on this case, the discretion on a secret ballot will remain with parliament.

My sense is that the judgement will go the same way as the Nkandla court case. Everybody got a win. It was a win for Zuma because the court said that he failed to protect the Constitution. They never said he did it deliberately. In my view, what Mogoeng said in the Nkandla judgement is: "If you want to get rid of Zuma, you can't use me for that. I'll do my part. You can then do political work if you want."

It was also a win for those who wanted Zuma to go, because at least the finding was that he did violate the Constitution. But arguably, all that was found was that he failed to protect it. My sense with this judgement is that we'll go through the same thing. The court might give a judgement in relation to the substantive issue, which is the secret ballot, but I feel that the court will push that discretion back to the Speaker of Parliament Baleka Mbete.

It will be a win for Zuma because the court will not have exercised that discretion on behalf of parliament, but it will have outlined the conditions and material arguments in relation to how it must exercise that discretion. Zuma will have won because the courts will not have exercised the Speaker's functions for her.

One of the reasons why the president got involved in this is to drive the narrative. The presentation that was made on his behalf will be taken as the narrative on the streets, to say that the courts are overreaching.

I think our courts are learning to craft very careful judgements so that they are not used directly for political goals, though they can be used as a basis for political campaigns that are needed to achieve political goals.

Before the judgement is released on this matter, you see already that there are those within the African National Congress who are using this hearing as ammunition in the party's factional battles. They are doing this by putting this case together with previous ones regarding executive authority, and they are using this to say that Zuma doesn't have credibility and therefore allies do not have credibility. And they are using that to push against the courts.

There is another interesting narrative – the president has gone into the court and made a presentation in a matter pertaining to the legislature. This shows that the president is crossing the separation of powers line himself, though he is arguing that the courts should not cross that line in making prescriptions on the matter.

One of the reasons why the president got involved in this is to drive the narrative. The presentation that was made on his behalf will be taken as the narrative on the streets, to say that the courts are overreaching. The problem here is that the court is incapable of defending itself in the public space. It is not the nature of its function to do so. The ANC, particularly Zuma's people, are going to try and push their narrative, where they are slating the courts in this space. You saw this happening in KZN with the anti-judiciary march.

The reality is that when you have a party that is in charge, with a 60 percent majority, and that party is marching in the streets, it is acting as a small interest group. But it is actually intimidating the judiciary. If this was Freedom Front Plus marching like this, I would understand. They wouldn't have the institutional muscle to place the court under strain. But the ANC has that. Through the department of justice, there are ways in which they could constrain the courts, and make the functioning of the judiciary difficult. They could make the lives of judges difficult. That is why the march by the ANC cannot be seen as just another attempt to put a voice into the judicial process and in power. It carries more of an intimidating tone.

Nkosazana Dlamini-Zuma's talk, if you listen carefully, is going to be a lot about that narrative that says that the courts are actually running parliament. Telling the legislature what to do. You can expect this message to be pushed aggressively going forward, perhaps right into the 2019 election campaign.