A number of Constitutional Court judges have questioned the United Democratic Movement’s assertion that a vote of no confidence in the president must be done by secret ballot.

The judges questioned why the section in the Constitution dealing with the vote of no confidence did not specifically mention that the vote should be done by way of secret ballot‚ while other sections explicitly stated the method of voting.

The UDM was on Monday making oral arguments on why the court should compel a parliamentary vote of no confidence in President Jacob Zuma to be conducted by secret ballot.

It relied on Section 102 (2) of the Constitution.

The section states that that if the National Assembly‚ by “a vote” supported by a majority of its members‚ passes a motion of no confidence in the President‚ the President and the other members of the Cabinet must resign.

Justice Mbuyiseli Madlanga told counsel for the UDM‚ Dali Mpofu SC‚ that the drafters of the Constitution in two instances were alive to the need for secret ballot: on the right of citizens to vote by secret ballot (Section 19) and on when the president was appointed (Section 86).

“They (drafters) must have consciously decided not to prescribe it when it came to a vote of no confidence in the president. Did they not make a conscious choice that there be no secret ballot‚” Madlanga asked.

Justice Sisi Khampepe asked Mpofu what the court should make of the fact that the Constitution stated that there should be vote by secret ballot in terms of sections 19 and 86‚ but not in terms of section 102.

Chief Justice Mogoeng Mogoeng asked:“Could it be that the drafters of the Constitution‚ mindful of the principle of separation of powers‚ wanted this arm of the state (legislature) to decide on how they would decide on the motion to be conducted? Could it be that they left it to the National Assembly?”

Mpofu said this could be the case‚ but this was not so.

Mpofu said the reason the Constitution prescribed that citizens should vote by secret ballot was to protect the vote against possible intimidation..

Mpofu said Parliament had declared intimidation of MPs as a crime.

“Surely that must put an obligation on the Speaker simply to do what she can do to prevent that crime from being committed. In this case‚ it so happens the crime has been reported.”

Mpofu said that in the letter of a request for a motion of no confidence from the UDM to the Speaker‚ the party stated that it had come to its attention that there was intimidation of MPs taking place and asked for the motion of no confidence to be done by secret ballot.

Mpofu said the requirement for the secret ballot on a motion of no confidence would be to protect MPs from intimidation.

Mpofu said a constitution‚ by definition‚ was a framework and would never foresee all possible situations.

“Life gets breathed into it‚” Mpofu said.

Mpofu said his job was to convince this court that not having a secret ballot would be illogical in the totality of the circumstances.

The Economic Freedom Fighters was going to argue to support the UDM’s application.

The UDM in April asked for the motion of no confidence in the president following Zuma’s controversial Cabinet reshuffle in March‚ which saw the removal of former finance minister Pravin Gordhan and his deputy Mcebisi Jonas.

The actual debate and vote was postponed by National Assembly Speaker Baleka Mbete last month to allow for the court application to be finalised.

Zuma has opposed the application‚ saying a ruling by the court forcing Mbete to allow MPs to vote in secret would subvert the rights of the ruling ANC‚ which has the majority‚ in Parliament.

No motion of confidence has succeeded because ANC MPs traditionally close ranks around Zuma.

The matter continues.