Scrutiny for the pub­lic good

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Deputy Chief Jus­tice Dik­gang Moseneke earned the ANC’s op­pro­brium last year when he sug­gested that the pow­ers of the pres­i­dent be re­viewed. In a lec­ture at Unisa, Moseneke said the Con­sti­tu­tion gave one per­son – the pres­i­dent – too much power when it came to mak­ing ap­point­ments to key po­si­tions in gov­ern­ment. He sug­gested this could be open to abuse.

“I pro­pose that we con­sider the dis­tri­bu­tion of open power in the fol­low­ing two decades. Nat­u­rally, amend­ing ex­ec­u­tive power is go­ing to be a dif­fi­cult task...”

He added this per­ti­nent point: “How best may we shield ap­point­ments of pub­lic func­tionar­ies to in­sti­tu­tions that guard our democ­racy from the per­sonal pref­er­ences of the ap­point­ing au­thor­ity?”

Moseneke came in for a lot of stick from po­lit­i­cal quar­ters, with ac­cu­sa­tions that he was ven­tur­ing into po­lit­i­cal ter­ri­tory judges should stay away from and that he was at­tack­ing the Con­sti­tu­tion. ANC trea­surer-gen­eral Zweli Mkhize was prob­a­bly the harsh­est, say­ing it would “be un­think­able of a deputy pres­i­dent of the state to make such a state­ment about the ex­ten­sive power of the chief jus­tice”.

“At which point should the com­ments be seen as po­lit­i­cal state­ments ut­tered by a se­nior judge, con­sid­er­ing that it is the Na­tional Assem­bly, con­sist­ing of elected po­lit­i­cal rep­re­sen­ta­tives, whose re­spon­si­bil­ity it is to de­bate and vote on such pow­ers and amend the Con­sti­tu­tion? Could his com­ments pos­si­bly be con­strued as a call for an amend­ment of the Con­sti­tu­tion?” he asked.

The ob­vi­ous an­swer to Mkhize’s ques­tion is yes. This will re­quire a con­sti­tu­tional amend­ment and the elected rep­re­sen­ta­tives in the na­tional leg­is­la­ture will have to dis­play ma­tu­rity and vi­sion when de­bat­ing the changes. They will have to rise above nar­row and short-term po­lit­i­cal in­ter­ests, and think about the qual­ity of the democ­racy we are build­ing.

Tam­per­ing with the Con­sti­tu­tion is only de­sir­able if the ob­jec­tive is to im­prove it and strengthen ar­eas the drafters may have over­looked, or to keep up with so­ci­etal changes. The sit­u­a­tion has to ab­so­lutely ne­ces­si­tate it, as it does to­day.

When giv­ing ex­ten­sive pow­ers to the pres­i­dency, the drafters of the Con­sti­tu­tion naively be­lieved all fu­ture pres­i­dents would use them for the good of the coun­try. They did not en­vis­age these would be abused to give one in­di­vid­ual self­ish con­trol over the po­lice, the pros­e­cut­ing au­thor­ity and other statu­tory in­sti­tu­tions. They be­lieved these pow­ers would be used to ap­point peo­ple who would be best placed to ex­e­cute the du­ties of those of­fices with­out fear or favour and in pur­suance of the pub­lic good. They also be­lieved such peo­ple would be re­moved from po­si­tions only when they were in­ca­pable of ex­e­cut­ing their du­ties or if they had com­pro­mised their po­si­tions.

But the events of the past few years have shown that we need a trans­par­ent way of mak­ing key ap­point­ments that af­fect the lives of cit­i­zens. This in­cludes min­is­te­rial ap­point­ments. The qual­ity of ap­point­ments and lev­els of ac­count­abil­ity would be greatly en­hanced if we were to go the route of the con­fir­ma­tion hear­ings of the US Se­nate.

Here, Se­nate com­mit­tees con­vene to con­firm the ap­point­ment of who­ever the pres­i­dent has cho­sen for a top gov­ern­ment po­si­tion. Can­di­dates are grilled by com­mit­tee mem­bers and its re­searchers would have done thor­ough work on their back­grounds. By the end of the TV hear­ing, the na­tion knows the can­di­date well and can de­cide whether to trust them.

There have been many times when can­di­dates could not with­stand scru­tiny and fell by the way­side. Some are re­jected by the com­mit­tee, forc­ing the pres­i­dent to go back to the draw­ing board. Those who do make it are well pre­pared for the rigours of the job.

It would be safe to as­sume that many peo­ple who hold pub­lic of­fice in South Africa would have a hard time get­ting through the sys­tem. Even if use­less can­di­dates suc­ceed – as some do dur­ing the sham par­lia­men­tary in­ter­views for the SABC board – their weak­nesses will have been ex­posed in full view of the pub­lic. The strong can­di­dates who are de­serv­ing of their ap­point­ments will have been strength­ened by the process and sen­si­tised to is­sues they may not have been aware of.

Such a move would ob­vi­ously be seen by some in the ANC as an at­tempt to neuter the pres­i­dent. It should not be seen as such, but as an in­vest­ment in the qual­ity of the democ­racy, re­gard­less of which party or in­di­vid­ual is in power. The be­hav­iour of the in­cum­bent – and to a cer­tain ex­tent his pre­de­ces­sor – has alerted us to the dan­gers of cen­tral­is­ing too much power.

Be­sides, if such an amend­ment went through, it would prob­a­bly af­fect him at the tail end of his chaotic pres­i­dency.

Some turn up in old SA flag T-shirts, show­ing off their stu­pid­ity and long­ing for white rule

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