Caiphus Kgosana

CityPress - - Careers & Voices - Fol­low me on Twit­ter @Cai­phusk_11

The line between party and state is of­ten fine in mod­ern democ­ra­cies. Many po­lit­i­cal par­ties that as­sume state power find them­selves bat­tling to draw a vis­i­ble line between the two.

South Africa’s elec­toral and po­lit­i­cal sys­tems make it even more dif­fi­cult to abide by this line. It’s a win­ner-takes-all sys­tem, where the party that as­sumes power nom­i­nates and elects the pres­i­dent and pre­miers in the prov­inces it wins.

That pres­i­dent se­lects his Cabi­net from among mem­bers of the Na­tional Assem­bly and even gets the priv­i­lege to choose two min­is­ters who are out­side of Par­lia­ment. The rul­ing party gets to de­ploy di­rec­tors­gen­eral and the Cabi­net rat­i­fies a min­is­ters’ choice of deputy di­rec­tors-gen­eral for their re­spec­tive de­part­ments.

The chief ex­ec­u­tives of sta­te­owned com­pa­nies with multi­bil­lion­rand bud­gets, am­bas­sadors and the heads of var­i­ous state in­sti­tu­tions are cho­sen by the win­ning party. All th­ese cru­cial po­si­tions are given to de­ployed cadres who are en­trusted with de­liv­er­ing on the man­date of the party.

It’s not just the ANC that does this. When the DA won the Western Cape in 2009, it quickly purged the heads of de­part­ments ap­pointed by the out­go­ing ANC pre­mier and MECs, and re­placed them with those who are in line with the DA’s poli­cies and think­ing.

But even with this sys­tem in place, the doc­trine of the sep­a­ra­tion of pow­ers has largely been re­spected in the 20 years of our democ­racy.

Ac­cu­sa­tions that mem­bers of the ex­ec­u­tive treat Par­lia­ment with con­tempt, or want to turn it into a rub­ber stamp of ex­ec­u­tive com­mit­tees, have always been whis­pered in the cor­ri­dors.

But apart from min­is­ters who of­ten fail to make time to ac­count to com­mit­tees and to the House, there has never been open and ac­tive at­tempts to tam­per with the doc­trine of the sep­a­ra­tion of pow­ers.

That is un­til Tues­day morn­ing, when min­is­ters in the se­cu­rity clus­ter took it upon them­selves to com­pletely dis­re­gard Par­lia­ment, usurp the pow­ers of the Speaker and turn the in­sti­tu­tion into an or­gan that is noth­ing but an ex­ten­sion of ex­ec­u­tive power.

The min­is­ters – with­out any rep­re­sen­ta­tion from Par­lia­ment – or­gan­ised a press con­fer­ence and dic­tated to Par­lia­ment how it should hence­forth be deal­ing with dis­rup­tions in the Na­tional Assem­bly and its ac­tiv­i­ties, as hap­pened last week when Economic Free­dom Fighters (EFF) mem­bers brought the House to a stand­still, de­mand­ing that Pres­i­dent Ja­cob Zuma pay back the money spent on up­grades to his Nkandla es­tate.

No mat­ter how re­pul­sive and dis­re­spect­ful the ac­tions of the EFF mem­bers were, it should have been left to Speaker Baleka Mbete to de­ter­mine and de­cide future mea­sures to deal with such in­ter­rup­tions.

Yes, the polic­ing func­tion is con­trolled by the ex­ec­u­tive, via the min­is­ter of po­lice, but Mbete is the head of a sep­a­rate arm of state. She would have con­sulted the min­is­ters for their in­put on im­prov­ing se­cu­rity in the precinct and in­cluded their in­put in her se­cu­rity as­sess­ment.

What the se­cu­rity clus­ter min­is­ters did was re­duce Mbete to an ap­pa­ratchik who can be or­dered around by the ex­ec­u­tive and be in­structed about the se­cu­rity mea­sures she needs to im­ple­ment in her House.

The Con­sti­tu­tion was torn into shreds by the ex­ec­u­tive; and Speaker Mbete – one of its key cus­to­di­ans – al­lowed it to hap­pen un­der her watch.

ANC MPs are not happy about this briefing or some of the over-the-top state­ments com­ing from Luthuli House, such as ANC sec­re­tary­gen­eral Gwede Man­tashe’s ill­con­sid­ered com­ments about mov­ing Par­lia­ment from Cape Town be­cause in his mind the po­lice are par­ti­san in a DA-con­trolled prov­ince.

The de­bate about the lo­ca­tion of Par­lia­ment and the costly ex­er­cise of shut­tling min­is­ters and gov­ern­ment of­fi­cials between the two cities is an im­por­tant one.

In fact it’s one area where the EFF and the ANC agree. But it can­not be as a re­sponse to some imag­i­nary se­cu­rity threat posed by the EFF in their red over­alls and in-your-face ap­proach.

The ANC cau­cus must stand up and chal­lenge min­is­ters not only for un­der­min­ing Par­lia­ment, but by telling Luthuli House to back off.

π There is an at­tempt to in­ter­fere with the func­tion­ing of her of­fice, in vi­o­la­tion of sec­tion 181(4) of the Con­sti­tu­tion, which states that no per­son or or­gan of state may in­ter­fere with the func­tion­ing of in­sti­tu­tions sup­port­ing democ­racy. π The Public Pro­tec­tor is of the view that, in line with the con­sti­tu­tional im­per­a­tive to ‘take ap­pro­pri­ate re­me­dial ac­tion’, her role on the mat­ter ends once the pres­i­dent has com­plied with the duty to sub­mit to Par­lia­ment her re­port with his com­ments and in­ten­tions on ac­tion in pur­suit of re­me­dial ac­tion. π It is the Public Pro­tec­tor’s be­lief that her ex­haus­tion of the process to its ul­ti­mate con­clu­sion as required by law sup­ports par­lia­men­tary democ­racy. It is, s, there­fore, un­clear in what way her let­ter to the pres­i­dent has un­der­mined Par­lia­ment, or what ex­actly the let­ter has taken away from Par­lia­ment. π She con­sid­ers as in­ter­fer­ence the ex­tra­or­di­nary at­tempts by par­ties to in­structct her of­fice on how to per­form its func­tions. In ad­di­tion, nowhere in the Public Pro­tec­tor’s tor’s let­ter to the pres­i­dent does she ask the pres­i­dent to sub­mit his com­ments to her. er. She specif­i­cally asks the pres­i­dent to com­ply with the law and re­port to Par­lia­ment. ment. π The Public Pro­tec­tor con­sid­ers her ac­tion to be en­rich­ing the par­lia­men­tary process by en­sur­ing that Par­lia­ment has a re­sponse to eval­u­ate.

π It has be­come that Of­fice’s habit to la­bel and de­monise those who dis­agree with it on mat­ters of prin­ci­ple. π By di­rectly writ­ing­writin to the pres­i­dent re­gard­ing his re­port, which is cur­cur­rently be­fore a process of Par­lia­ment, she has demon­strated dis­re­gard for the au­thor­ity of Par­lia­men­tPar­liam and lack of con­fi­dence in its law­ful pro­cesses. π She is en­croachi­nen­croach­ing on the con­sti­tu­tional au­thor­ity of the in­sti­tu­tion. π In essence, her ac­tion­ac­tio es­tab­lishes a par­al­lel process that not only du­pli­cates the work of the ad hoc com­mit­tee, but ren­ders the pa­parlia­men­tary process mean­ing­less. π Our co­con­sti­tu­tional in­sti­tu­tions ought to resre­spect and com­ple­ment each other’s ppow­ers and func­tions, rather than com­pete and un­der­mine each other.

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