POINT OF ORDER
IF YOU were to propose, just as an intellectual exercise, some constitutional amendments that would improve SA’s political system, based on our current predicament, what would they be? This exercise is less than realistic, but actually more than fantasy because, in truth, SA is currently involved in a low-level, unacknowledged constitutional crisis.
If you take together a range of crises currently part of SA politics — the Gupta saga, the SABC and now even the fight with the Electoral Commission of SA, among many others — and trace back their origins, it’s possible to see a constitutional root to the problem.
Essentially, the Constitution conceives of a balance of powers between the three branches of government, and yet it’s obvious that Parliament is not doing its allotted job. Hence, the third leg of the stool, the judiciary, is unwillingly and unnaturally being called in to do the job that Parliament is supposed to be doing.
The reason this is the case is simple, and has been the subject of discussion for years. The political parties are so powerful, they effectively negate the notional balance between Parliament and the executive. The most obvious example is the Nkandla affair, where instead of doing its job and insisting that President Jacob Zuma pay back the money, Parliament did the exact opposite and supported the president against its own institution, the public protector.
It took years of arguing, litigating, and reviewing at enormous expense for some slight semblance of justice to appear and for someone to take responsibility for a tiny portion of the absurd over-expenditure involved.
The reason Parliament is absent without leave is obvious; parliamentarians are so blindingly, unwaveringly obedient to the party that their actual constitutional function to provide a “check and balance” on the executive is left in the dust.
The constitutional amendment solution that has been proposed often before is to reform the electoral system, and the simplest solution would be to apply the dual list system that we already have at a local government level to national government. Then, at least, we would have a group of parliamentarians who would be responsible, once elected, first and foremost to their constituency rather than to the party bosses.
But this is not the only issue; there is the opposite problem. Recent events have highlighted the problem of an executive with quite limited constitutional powers, but too much actual power. This gap is once again being closed in an uncomfortable, bitty way by the legal system. The disjuncture is illustrated best by the sad history of the Financial Intelligence Centre Act (Fica), which has been passed by Parliament, but about which the presidency is “exercising its mind”.
Constitutionally, the president’s powers in respect of legislation passed by Parliament is notionally limited. Section 79 of the Constitution is very specific: “The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.” If Parliament sends it back to him, and he is still in doubt, then and only then can he send it to the Constitutional Court for consideration.
Yet, in practice, there are rafts of legislation that have been passed, but were “under consideration” for years on end. One such case is the Private Security Industry Regulation Amendment Bill, which would force the big four — ADT, Securitas, G4S and Chubb — to sell 51% of their equity to local entities. Because SA’s crime rate is so huge, and because the police are so derisory, the security industry is enormous and hugely profitable ... and largely foreign-owned. The law was passed by Parliament incredibly two years ago, but since then, there has been frantic lobbying behind the scenes about the act. ADT and Chubb are US-owned, Securitas is Swedish and G4S British.
The same backroom lobbying has happened around Fica, and SA’s banks are quietly tearing their hair out about the issue, because if SA is not compliant with international legislation, they could be cut out of lucrative trade deals. But the president was recently lobbied by both the Black Business Council and Jimmy Manyi’s Progressive Professionals Forum over the legislation.
This is music to the president’s ears because the legislation would make it difficult for his family’s business associates, the Guptas, to do business in SA because they would fall into the category of “politically exposed persons”, or PEPs.
There are examples the other way around too when Parliament has passed legislation it probably knows is constitutionally invalid in order to fight short-term political battles. In short, there is all sorts of game-playing involved in the legislative process that technically, the president is not allowed to play, but he does for diplomatic and political reasons.
One constitutional solution would be — take a deep breath now — to have the president elected directly.
When the Constitution was passed in the ’90s, it in some ways reflected the then political reality of the day. One of those realities was the desire on the part of both the National Party and the ANC for the party to be the predominant force in politics.
Only now are we discovering the true meaning — and true dysfunctionality — of that construction.