Chief Justice Mogoeng Mogoeng and his colleagues on the bench of the Constitutional Court trod a fine line in delivering the secret ballot judgment on Thursday, but ultimately refrained from ordering the National Assembly what to do.
The country's apex court is an extremely unhappy hunting ground for both President Jacob Zuma and Speaker Baleka Mbete, both having suffered painful losses there, most notably with the Nkandla judgment last year. The executive (as the scathing indictment recently of Social Development Minister Bathabile Dlamini has shown) is also regularly kept in check by the green robed jurists from Braamfontein.
This has led to resentment in some circles, including in the highest echelons of the governing party and government, that the country is being ruled by the courts. The High Court in Pretoria, for example, is a theatre of battle where the executive loses more often than not -– like the Al-Bashir ruling shows. The High Court in Cape Town also joined the fray earlier this year, stopping government's plans to ram through the procurement of nuclear power stations without proper consultation. And the Democratic Alliance have made an art out of lodging applications in the High Court.
The court found that the government had acted unlawfully and breached both domestic and international law by not arresting Sudan leader Omar al-Bashir when he attended a Summit in South Africa. Al-Bashir is wanted by the International Criminal Court for war crimes.
But Mogoeng and company are very aware of judicial overreach and the separation of powers. Our constitutional dispensation is constructed on the three arms of state, each nominally independent and separate, ensuring oversight and accountability but also giving each other the space to fulfill their statutory mandates.
The courts only intervene when the executive or the legislature fails to do its job. And the Zuma government has since 2009 been regular defendants in numerous courts about various breaches and failures, be it helping dictators escape the country or failing to provide social services.
Our courts aren't ruling the country, they're keeping abuses in check -- exactly what the Constitution demands of them.
In the Nkandla judgment, it was clear that Parliament, and the speaker, did not adhere to its founding principles and the court was justified in forcing corrective measures. It's more tricky in this case, where the speaker has acknowledged that she's not adverse to holding a motion of no confidence in her president -- she's done so a number of times before -- but that she is not empowered to hold it in secret.
The court has now merely found that yes, she is empowered to facilitate a secret ballot. The authority to make such a decision however does not rest with the court, but the legislature.
There is no way Mbete, one of Zuma's most vocal praise-singers and his shield from parliamentary scrutiny, will allow a secret ballot. Politically, even though it's still a long shot to believe that MPs from the African National Congress (ANC) will vote against their leader, it remains a risk. Luthuli House heavies have had to visit the caucus twice in the last 12 months to quell uprisings and ensure the party line is toed. The divide is deepening and the party wouldn't want to risk anything.
More importantly, however, when Mbete refuses the request for a secret ballot -- and she will -- she'll have to show that she applied her mind and acted rationally in coming to that decision. And there's more than enough democratically defensible and constitutionally sound reasons why she shouldn't allow a secret ballot.
In the unanimous judgment Mogoeng, on behalf of his colleagues, emphasised the imperative of keeping the executive to account and how a motion of no confidence in the head of state contributes to our system of checks and balances. To vote against the president, Mogoeng said, requires a certain level of fortitude and commitment to democracy by elected representatives. To do so means they have the courage of their conviction and that they are guided by civic duty, unperturbed by the political consequences and unmoved by intimidation.
The speaker might very well argue the same, and hold that the public have every right to see how MP's vote in order to for the public to hold these representatives -- and their parties -- to account.
That's the democratic way.
In reality though, it might also mean exposing those MP's who really do fear for their safety and their futures. And it might also mean that many in the ANC caucus won't vote according to their consciences and their convictions.
Our electoral system -- a party list-system of proportional representation -- vests too much power in party bosses. Too much is determined by the ANC's deployment committee on the sixth floor of Luthuli House.
But the court's judgment was the right one. It confirmed the speaker's powers and safeguarded the courts' integrity. Now it's up to MPs either pushing the green button in support of the motion, or the red one, rejecting it.