Can Parliament hold the executive accountable if motions of no confidence in the president are not exercised through a secret ballot? That is one of the key questions that South Africa's Constitutional Court must decide on.
It was also the key question that the Institute for Security Studies (ISS) contributed to in its application to become an amicus curiae, or friend of the court, in the matter that was heard on Monday, 15 May.
The case was brought by the United Democratic Movement (UDM) after President Jacob Zuma fired respected former finance minister Pravin Gordhan and his deputy Mcebisi Jonas as part of a cabinet reshuffle on 30 March. These developments had a direct impact on South Africa's investment rating and come with considerable impact on future borrowing costs, particularly if a third ratings agency follows the downgrade done by others.
The official opposition, the Democratic Alliance (DA), seeking to capitalise on the national mood against Zuma, tabled another parliamentary motion of no confidence in the president. Section 102 of the Constitution provides such a motion as a key mechanism to hold the executive - comprising the president and his cabinet - to account. Such a motion requires the support of a simple majority (201 of the 400 members of the National Assembly). If this occurs, the president and his cabinet must resign.
Following the tabling of the motion of no confidence, a number of ANC Members of Parliament (MPs) suspected of supporting the motion received threats and intimidation. ANC MP Dr Makhosi Khoza had been particularly outspoken about how the 'politics of patronage' had 'finally claimed the sanity of my ANC leadership'. She opened two separate criminal charges with the police in response to threats she received.
Death threats have largely been targeted at Zuma's detractors and public threats of violence have come primarily from ANC structures that are headed by Zuma loyalists such as the ANC youth and military veterans' leagues.
As a result, the UDM filed an application asking the Constitutional Court to order that a secret ballot be held in an effort to protect ANC MPs who may vote for the motion.
On the basis of its research into political violence in South Africa, and the impact of violence on democracy and development throughout Africa, the ISS applied to act as an amicus curiae in the matter.
ISS research has shown that numerous ANC officials have been assassinated as a result of inter-ANC conflicts and disputes. Politically motivated assassinations have occurred in most provinces, with the majority taking place in KwaZulu-Natal. The ISS study found that between 2006 and 2014 there were 61 fatal incidents resulting in 70 deaths in KwaZulu-Natal alone. Political assassinations have also been prevalent in Mpumalanga, North West and the Eastern Cape.
More recently, the ISS Public Violence Monitor recorded a total of 100 political attacks that resulted in at least 49 deaths between 2013 and 2016. The 2014 and 2016 election years were host to the most fatal political attacks, with 28 and 21 deaths respectively. Most occurred in the months leading up to the elections. In the run-up to the 2016 local government elections, 17 of the 20 political party officials and members killed were from the ANC, three from the Economic Freedom Fighters and one from the South African Communist Party.
Against this backdrop, the current threats against ANC MPs cannot be taken lightly and will probably prevent them from exercising their constitutional mandate in Parliament.
The ISS' submission to the Constitutional Court focused on the impact that threats of violence and other forms of intimidation would have on the mechanism of a vote of no confidence. The ISS argued that for the no-confidence motion to become a meaningful mechanism of parliamentary accountability, MPs must be able to use exercise it free from intimidation or duress.
During normal parliamentary votes where intimidation is absent, the ISS would argue for an open vote in the interests of transparency. However, where the position of president is in contest, a different situation applies. This is because substantial pressure is likely to be placed on MPs to vote in a particular way. Those who don't may suffer retribution.
Seemingly recognising this situation, the Constitution already allows for a secret ballot when the National Assembly chooses the president and there is contestation for the position.
The ISS argues that 'if the failure of a motion of no confidence is unfairly predetermined by threats and intimidation against members that may vote against party discipline, then the vital tool loses its bite completely and may be laughed off by the Executive. That endangers our constitutional democracy. It allows dictatorship to creep in incrementally'.
The rules of Parliament must give effect to the constitutional mandate of holding the president and cabinet accountable. The only way this can be achieved is through enabling a secret ballot to provide a measure of protection to those ANC MPs who choose to vote for the motion. This will help ensure that the checks and balances in the Constitution are meaningful.
Gareth Newham, Head, Crime and Justice Programme, ISS Pretoria