Scrutiny for the public good
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