Our pres­i­dent has too much power, says Moseneke

The Star Early Edition - - NEWS - NTANDO MAKHUBU

THE PRES­I­DENT’S right to ex­er­cise per­sonal pref­er­ences in ap­point­ing heads of ma­jor po­si­tions in pub­lic in­sti­tu­tions might be a hin­drance to democ­racy, Deputy Chief Jus­tice Dik­gang Moseneke said yes­ter­day.

The judge was de­liv­er­ing the key­note ad­dress at Unisa dur­ing a con­fer­ence en­ti­tled “20 years of democ­racy in South Africa: Where to now”.

His topic was “Re­flec­tions on South African Con­sti­tu­tional Democ­racy – tran­si­tion and trans­for­ma­tion”.

The event was hosted by the Thabo Mbeki Lead­er­ship In­sti­tute and the Ma­phun­gubwe In­sti­tute to re­flect on the past and to find a way to carry the coun­try for­ward into the next two decades of democ­racy.

Jus­tice Moseneke told the gath­er­ing that an ex­am­i­na­tion of the pow­ers of the na­tional ex­ec­u­tive showed a re­mark­able con­cen­tra­tion of the presi- dent’s pow­ers of ap­point­ment – some­thing that was not in line with the sep­a­ra­tion of pow­ers.

Only in a few in­stances did he ex­er­cise pow­ers of ap­point­ment to­gether with Par­lia­ment and other or­gans of state. “As for the rest, the pres­i­dent ap­points within ex­clu­sive dis­cre­tion.”

Jus­tice Moseneke also ques­tioned the wis­dom of ap­point­ing mem­bers of the cab­i­net ex­clu­sively from Par­lia­ment and asked if that best ad­vanced the duty mem­bers of Par­lia- ment had – to hold the ex­ec­u­tive to ac­count.

“If their ca­reer’s log­i­cal ad­vance­ment is within the na­tional ex­ec­u­tive, are mem­bers of Par­lia­ment likely to rat­tle the ex­ec­u­tive cage? Will they ful­fil their con­sti­tu­tional man­date by hold­ing the na­tional ex­ec­u­tive to ac­count?” he asked.

“This un­canny con­cen­tra­tion of power is a mat­ter which, go­ing for­ward, we may ig­nore, but only to our peril,” he said.

The deputy chief jus­tice, a for­mer Robben Is­land po­lit­i­cal pris­oner, also said the coun­try’s courts had on sev­eral oc­ca­sions ad­ju­di­cated chal­lenges against the ra­tio­nal­ity of sev­eral ap­point­ments made by Pres­i­dent Ja­cob Zuma.

“It is self-ev­i­dent that an ap­point­ment by a de­lib­er­ate col­lec­tive is less vul­ner­a­ble to a le­gal chal­lenge or ra­tio­nal­ity than an ap­point­ment by an in­di­vid­ual func­tionary,” he said.

Jus­tice Moseneke high­lighted how best ap­point­ments of pub­lic func­tionar­ies to in­sti­tu­tions that girded the coun­try’s democ­racy could be shielded from per­sonal pref­er­ences and the whims of the ap­point­ing au­thor­ity.

He sug­gested a re­visit of the dis­per­sal of pub­lic power in the next two decades. At the time of the for­mu­la­tion of the fi­nal con­sti­tu­tion, par­ties re­lied on the in­tegrity of then pres­i­dent Nel­son Man­dela to do the right thing when ap­point­ing pub­lic func­tionar­ies.

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