Frolicking failed the Mbete no-confidence motion

The motion of no confidence against National Assembly speaker Baleka Mbete has come and gone, and the ANC predictably used its majority to protect their party chairperson, just as Mbete is accused of using her office to protect Luthuli House and shield its Number One in the National Assembly.

While the democratic will of the ANC’s parliamentary majority eventually prevailed in defeating the motion, it was nearly not given expression due to a problematic ruling by the presiding officer, Cedric Frolick, which sets a very bad precedent if left unchallenged.

In allowing the motion to be perverted by the ANC into one expressing confidence in the speaker, house chairperson Frolick undermined, indeed obliterated, the constitutional provision for a member to have such a motion put.

Frolick was correct in pointing out that Rule 96(c) allowed for a draft resolution, including substantive motions, to be amended, but erred in four important ways.

First, the motion of no confidence is not an ordinary substantive motion or draft resolution. It is pursuant to a very specific constitutional provision contained in section 52(4).

Secondly, a parliamentary majority should not be allowed to steamroll over a legitimate attempt by dissenting parties to exercise their constitutional right by turning it into something completely different than what was intended and provided for.

The Constitutional Court pronounced on this principle in Mazibuko vs the Speaker following the ANC’s abuse of its majority in blocking a motion of no confidence in the president from being debated and put to the house.

The speaker is elected by a secret ballot during an election presided over by the chief justice, and members should similarly be allowed to cast a secret ballot when expressing their confidence or lack of confidence in her performance in the office.

If the ANC is as confident in its majority as it claims it should allow a secret ballot to express it.

Thirdly, as far as I am aware, the motion of no confidence in the speaker is unprecedented in the post-apartheid Parliament. There is thus no precedent in having such a motion debated or put, let alone amended as claimed by Frolick.

The motion is by its very nature an intensely political exercise and by allowing its amendment at his discretion, the presiding officer took a political stance and failed to conduct himself in an impartial manner.

Finally, and more technically speaking, the rules allow for an amendment of a draft resolution and not its substitution. The word “amendment” in the legal or parliamentary context has a very specific meaning substantially different from that contemplated by or meant with “substitution”.

In the end the ANC withdrew its substitution of the motion, but only after the combined opposition, through DA parliamentary leader Mmusi Maimane, expressed dissatisfaction with Frolick’s ruling and his persistence in upholding it by staging a mass walkout.

Frolick’s ruling, the implications of which are recorded in today’s minutes of proceedings, must be challenged to overturn a very bad and problematic precedent.

If not it wipes out a very important constitutional right of a member or parties to use a critical parliamentary mechanism available to them.

It is perhaps necessary to change the rules to only provide for the amendment of motions of no confidence by the member introducing them.

Furthermore, it may also be desirable to require that such a motion be presided over by the chief justice or their designate considering this is the case with the election of the speaker in the first place.

All things considered, the debate on the role, functions and qualifications of the speaker in a multiparty constitutional democracy and the possible reform thereof is an important and timely one that should continue beyond the motion of no confidence.