Please sign here Mr. Zuma

Pres­i­dent lag­gard in sign­ing leg­is­la­tion curb­ing po­lit­i­cal ap­point­ments

Finweek English Edition - - FRONT PAGE - TROYE LUND troyel@fin­media24.com

PRES­I­DENT JA­COB ZUMA has been put in an un­ex­pect­edly tight po­lit­i­cal spot by a piece of leg­is­la­tion Par­lia­ment has passed in a bid to stamp out the kind of po­lit­i­cal in­ter­fer­ence paralysing – if not cor­rupt­ing – mu­nic­i­pal gov­ern­ment in South Africa. The Mu­nic­i­pal Sys­tems Amend­ment Bill aims to en­sure pro­fes­sion­als – not politi­cians – are ap­pointed to key mu­nic­i­pal man­age­ment po­si­tions.

The Bill has been on Zuma’s desk wait­ing for his sig­na­ture for two months. But he knows if he signs it into law he runs the risk of los­ing the crit­i­cal sup­port he needs from the ANC’s pow­er­ful labour al­liance part­ner in his bid for a sec­ond pres­i­den­tial term. How­ever, the re­al­ity is Zuma has no veto power over leg­is­la­tion Par­lia­ment passes. He may have no choice but to sign the Bill into law.

While Zuma’s fail­ure to sign the Bill ex­pe­di­tiously is a cause for concern – be­cause it was meant to ben­e­fit new mu­nic­i­pal ad­min­is­tra­tions be­ing ap­pointed af­ter the re­cent lo­cal gov­ern­ment elec­tions – union fed­er­a­tion Cosatu and its af­fil­i­ate, the South African Mu­nic­i­pal Work­ers’ Union (Samwu), have warned Zuma they’ll do what­ever it takes to get the Bill scrapped.

One of Samwu’s main gripes about the leg­is­la­tion is a pro­vi­sion pro­hibit­ing po­lit­i­cal party of­fice bear­ers from serv­ing as se­nior man­agers in mu­nic­i­pal­i­ties, in­clud­ing the po­si­tion of mu­nic­i­pal man­ager. The term “po­lit­i­cal of­fice” in­cludes some­one who is at the level of chair­man, deputy chair­man, sec­re­tary or deputy sec­re­tary or trea­surer of a po­lit­i­cal party at na­tional, pro­vin­cial or re­gional level. The Bill also tries to en­sure un­qual­i­fied in­di­vid­u­als aren’t ap­pointed to key po­si­tions be­cause of their po­lit­i­cal con­nec­tions. For ex­am­ple, the Bill pre­scribes how mu­nic­i­pal man­agers must be ap­pointed and how ad­verts for that po­si­tion have to be placed na­tion­ally to draw on the largest pos­si­ble pool of pro­fes­sion­als. The Bill also bans any mu­nic­i­pal em­ployee found guilty of corruption from work­ing in any other mu­nic­i­pal­ity for a pe­riod of 10 years.

Univer­sity of Cape Town con­sti­tu­tional law ex­pert Pro­fes­sor Pierre de Vos says it’s a “wise piece of leg­is­la­tion”. De Vos adds: “This means if the Bill be­comes op­er­a­tional it will end the prac­tice of the re­de­ploy­ment of ANC lead­ers – from branch level up­ward – as mu­nic­i­pal man­agers or other se­nior mu­nic­i­pal staff.

“While the Bill is good for SA and for long-suf­fer­ing com­mu­ni­ties who de­pend on mu­nic­i­pal­i­ties to de­liver ba­sic ser­vices, it will be bad for the ANC, as it will weaken its abil­ity to dis­pense pa­tron­age to those who re­main loyal to it. One of the ben­e­fits of be­ing the dom­i­nant po­lit­i­cal party in a democ­racy is to dis­pense lu­cra­tive po­si­tions to party mem­bers.”

Co-op­er­a­tive Gov­er­nance & Tra­di­tional Af­fairs Deputy Min­is­ter Yunus Car­rim cau­tions it’s not just the ANC that prac­tises cadre de­ploy­ment. Other par­ties also do when they gain con­trol of lo­cal and pro­vin­cial gov­ern­ments. Nev­er­the­less, Car­rim says this leg­is­la­tion is a crit­i­cal step in the plan to pro­fes­sion­alise mu­nic­i­pal ad­min­is­tra­tions and reg­u­late hu­man re­sources is­sues to im­prove ef­fi­ciency and ser­vices de­liv­ery.

“In many mu­nic­i­pal­i­ties may­ors are or­di­nary mem­bers of po­lit­i­cal par­ties while se­nior man­agers are of­fice-bear­ers. These se­nior man­agers of­ten refuse to act on cer­tain key in­struc­tions from may­ors or se­nior coun­cil­lors. Some­times they say: ‘No, we aren’t go­ing to do this: the party hasn’t agreed and we de­ployed you and can dis­miss you’,” says Car­rim, who ar­gues Samwu mem­bers aren’t af­fected but stand to ben­e­fit from the pro­vi­sion.

“Se­nior man­agers are not Samwu mem­bers but rep­re­sent the bosses who sit on the op­po­site side of the ta­ble from Samwu in ne­go­ti­a­tions. There’s ab­so­lutely no in­ten­tion to re­strict or­di­nary mu­nic­i­pal staff from serv­ing as of­fice-bear­ers of po­lit­i­cal par­ties. That would be un­con­sti­tu­tional any­way,” says Car­rim, who adds peo­ple will still have a choice: they can ei­ther be po­lit­i­cal of­fice-bear­ers or se­nior man­agers.

Samwu gen­eral sec­re­tary Mthandeki Nh­lapo ac­knowl­edges po­lit­i­cal in­ter­fer­ence is a sig­nif­i­cant mu­nic­i­pal gov­ern­ment prob­lem, es­pe­cially when it comes to ten­der pro­cesses. But he says that’s more of a dis­ci­pline is­sue for po­lit­i­cal par­ties, not some­thing to be leg­is­lated. “You can’t rush to the State and reg­u­late each and ev­ery

po­lit­i­cal is­sue that’s es­sen­tially about dis­ci­plin­ing mem­bers,” says Nh­lapo.

While Cosatu and Samwu did give de­tailed in­put to Par­lia­ment’s co-op­er­a­tive gov­er­nance and tra­di­tional af­fairs port­fo­lio com­mit­tee when it was fi­nal­is­ing the Bill, the trade union says the “tweaks” MPs made weren’t sat­is­fac­tory. Samwu ar­gues the Bill in­fringes the right of in­di­vid­u­als to be po­lit­i­cally ac­tive and says it’s more a “knee-jerk” re­ac­tion than an in­stru­ment that will not stop po­lit­i­cal in­ter­fer­ence or corruption in mu­nic­i­pal­i­ties.

While Nh­lapo con­tends Samwu mem­bers are in­deed mu­nic­i­pal man­agers and that the Bill will neg­a­tively af­fect the union, he doesn’t be­lieve it will stop un­due po­lit­i­cal in­flu­ence over mu­nic­i­pal ad­min­is­tra­tion. He says there will al­ways be po­lit­i­cal of­fice bear­ers who hold low-rank­ing jobs in mu­nic­i­pal­i­ties and who are there­fore not af­fected by the Bill’s pro­hi­bi­tions. “The fo­cus shouldn’t be on lim­it­ing peo­ple’s po­lit­i­cal rights; it should be on tight­en­ing up on things like ten­der pro­cesses,” says Nh­lapo.

While Na­tional Trea­sury says over­haul­ing ten­der pro­cesses is well un­der way and that the Mu­nic­i­pal Sys­tems Amend­ment Bill is meant to com­ple­ment a raft of other strate­gies to com­bat corruption and im­prove mu­nic­i­pal ad­min­is­tra­tion, Car­rim is con­fi­dent Gov­ern­ment can bridge its dif­fer­ences with Samwu.

How­ever, it may not be as easy as that. De Vos says Zuma can only refuse to sign the Bill into law if he can show he has bona fide con­cerns about its con­sti­tu­tion­al­ity. The Pres­i­dent must be care­ful when he does that be­cause if it can be shown he acted in bad faith (ie, sent it back to Par­lia­ment to ap­pease po­lit­i­cal pres­sure) his de­ci­sion can be re­viewed.

The prob­lem Zuma has is the Bill has been de­clared con­sti­tu­tional by a raft of ex­perts, in­clud­ing State lawyers in the Depart­ment of Co-op­er­a­tive Gov­er­nance & Tra­di­tional Af­fairs, the Depart­ment of Con­sti­tu­tional De­vel­op­ment & Jus­tice, the State Law Ad­vi­sor’s Of­fice, as well as in­de­pen­dent lawyers cho­sen by Samwu when the Bill was be­ing de­bated by the Na­tional Eco­nomic and De­vel­op­ment Labour Coun­cil (Ned­lac).

“If ev­ery­one has ad­vised him it’s con­sti­tu­tional he has no op­tion but to sign the Bill into law, even if it’s very un­pop­u­lar with the trade unions. In SA the Pres­i­dent doesn’t have veto power over leg­is­la­tion that’s been passed by Par­lia­ment. He can only re­fer it back to Par­lia­ment if he can show there are bona fide con­sti­tu­tional con­cerns,” says De Vos, who adds it’s un­ten­able for a piece of leg­is­la­tion to re­main on Zuma’s desk wait­ing to be signed or sent back two months af­ter both Houses of Par­lia­ment have passed it.

Mean­while, al­though trade unions and Gov­ern­ment re­main locked in ne­go­ti­a­tions over the pol­i­tics of the Bill, newly elected mu­nic­i­pal gov­ern­ments are be­ing ap­pointed for an­other term with­out key pro­vi­sions to limit po­lit­i­cal in­flu­ence over lu­cra­tive sources of State rev­enue.

PRES­I­DENT JA­COB ZUMA

MTHANDEKI NH­LAPO

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