Checks and balances mainly after the fact

Dear CW

I am concerned that many highprofile and important positions in South Africa made by the president are compromised from the start, like the national prosecutions head. What alternatives to presidential appointment are there in South Africa and other countries? — Sick of Lapdogs

Dear Sick of Lapdogs,

Your concerns regarding presidential appointments are valid, and shared by others in most societies.

This very issue came before court in Pakistan in October last year. The Supreme Court was called on to compel the government to constitute a commission to ensure that all future public appointments were merit-based.

The court found in favour of the government, emphasising deference to the executive’s authority and holding that high-level public appointments fell within its mandate. Notably, however, the court held that judicial respect for executive decisions could not be inflexible, stating that “it lasts for only as long as the executive makes a manifest and demonstrable effort to comply with and remain within the legal limits which circumscribes its power”.

This case is an interesting prelude to examining whether alternatives to presidential appointments are worth considering in South Africa.

Here, presidential appointments are prerogative powers that are constitutionally entrenched in law.

In essence, unless these powers are exercised irrationally or unlawfully, the president is empowered by the constitution to exercise them how he deems fit. Where exercised irrationally or unlawfully, the decision would be ripe for judicial review.

The checks and balances envisaged by our system is the “after the fact” judicial review mechanism, which enables unlawful and irrational decisions to be set aside by our courts.

It is worth mentioning that before certain appointments are made, the president is required to consult with certain ministers or executive committees. As examples:

Judges and acting judges are appointed by the president on the advice of the Judicial Service Commission; and

The public protector, auditorgeneral and members of the Human Rights Commission and the Independent Electoral Commission are appointed by the president on the recommendation of the National Assembly.

As you have pointed out, there are appointments that the president is empowered to execute without any ministerial or committee influence.

Interestingly, the appointment of the national director of public prosecutions is not one of those appointments. In this case, the president is obliged to make the appointment with the cabinet; the president is not empowered to do so independently.

In light of the above, it appears that South Africa has a constitutionally entrenched approach to presidential appointments, which would be difficult to overhaul.

It is still temping to look to alternatives in other countries:

The concept of having a commission to approve public appointments made by the president has proved to be successful in the UK (Commissioner for Public Appointments), Canada (Public Appointments Secretariat) and India (Appointments Committee of the Cabinet). However, those commissions were made pursuant to specific laws and statutes enacted for that purpose;

In Canada, the Federal Accountability Act, 2006, was enacted by parliament for, among other things, putting in place measures, respecting administrative transparency, oversight and accountability. However, no public appointments commission has been created to date; and

The US has a transparent process of screening appointments during televised congressional hearings.