Please sign here Mr. Zuma
President laggard in signing legislation curbing political appointments
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