To decide whether next week’s parliamentary vote of no confidence in President Jacob Zuma should be by secret or open ballot, National Assembly Speaker Baleka Mbete needn’t be deliberating with herself for as long as she has. Her parameters are defined by the constitutional obligation to apply the test of rationality that she’ll have to explain.

But to the extent that she’s also deliberating with the ANC, in her capacity as its national chair, both she and the ANC have a real difficulty. What kicks in is the Prevention & Combating of Corrupt Activities Act, specifically at s7 headed “Offences in respect of corrupt activities relating to members of legislative authority”.

See this in the context of threats to ANC members of parliament that, should they vote with their consciences (as required by law) to support the no-confidence motion, they’ll lose their jobs. If the threat is applied, and perhaps even by having implied such a threat, the ANC itself can be open to prosecution under the Act. Similarly liable to prosecution would be individual members who allow the threat, real or perceived, to dictate the way they vote.

The relevant section of the Act is explicit:

Any member of the legislative authority who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or

Any person who, directly or indirectly, gives or agrees or offers to give any gratification to a member of the legislative authority, whether for the benefit of that member or for the benefit of any person...

...in order to act, personally or by influencing another person so to act, in a manner that amounts to...the abuse of a position of authority...or designed to achieve an unjustified result...is guilty of the offence of corrupt activities relating to members of the legislative authority.

The provisions go further to include:

Voting at any meeting of;

Aiding or assisting in procuring or preventing the passing of any vote in;

Exerting any improper influence over the decision making of any person performing his or her function as a member of; or

Influencing in any way the election, designation or appointment or any functionary to be elected, designated or appointed by the legislative authority of which he or she is a member.

Moreover, the definition of “gratification” contains a wide variety of considerations. Amongst them:

The avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage;

Any office, status, honour, employment, contract of employment or services;

Any other service or favour or advantage of any description, including protection from any penalty...from any action or proceedings of a disciplinary nature;

Any right or privilege;

Any real or pretended aid, vote, consent, influence or abstention from voting.

Nothing could be clearer. Mbete and the party she chairs had better be forewarned. Otherwise, opposition parties and civil groupings have a plethora of grounds to lay charges. Arguably, by now they should already have moved.

There are nonetheless related consequences:

As chair of the ANC, which issued the prohibited threat, Mbete cannot possibly make impartial decisions required of a Speaker. She should therefore recuse herself;

Any attempt by ANC officials to discipline MPs who vote their conscience will make the officials accessories after the fact under s20 and s21 of the Act;

MPs threatened with disciplinary action will have the perfect defence i.e. that the ANC cannot punish them for their refusal to contravene the Act;

To avoid contravention of the Act, the ANC (through such senior office bearers as deputy president Cyril Ramaphosa or secretary general Gwede Mantashe) need to undertake that no MP will be removed for voting against party wishes.

Allan Greenblo is editorial director of Today’s Trustee (www.totrust.co.za), a quarterly magazine mainly for principal officers and trustees of retirement funds.

This article first appeared in BizNews.