Time to rethink president’s powers of appointment

DEPUTY Chief Justice Dikgang Moseneke and President Jacob Zuma have never been the best of friends. In fact, it would not be inaccurate to say Zuma is not Moseneke’s favourite politician after the president “overlooked” him for the post of chief justice. It would also not be surprising to discover that the deputy chief justice is not on the president’s Christmas card list this festive season as Zuma has always believed that Moseneke was part of the country’s political elite that sought to prevent him from becoming president of the ANC and the country in the run-up to December 2007.

However, it would be folly to dismiss Moseneke’s recent calls for a review of presidential powers as the mere ramblings of a jurist with an axe to grind.

The deputy chief justice, one of the architects of the constitution, caused a stir last week by suggesting that some of the powers given to the president and the executive might be a hindrance to democracy.

He argued that even though the constitution was supposed to rest on co-operative governance between different levels of power, a “careful examination of the powers of the national executive chapter in the constitution displays a remarkable concentration of the president’s powers of appointment”.

Not only does a president appoint cabinet ministers and their deputies, he appoints ambassadors, the chief justice and the judge president of the Supreme Court of Appeal.

The president is also responsible for the appointment of the heads of the Land Claims Court, the Competition Tribunal and leaders of many chapter 9 institutions as well as the Public Service Commission.

“As you would expect, powers of appointment are often coupled with powers of removal, albeit subject to some prescribed process.

“The vast powers of the appointment of the national executive bring to the fore the debate on whether the democratic project will be best served by a powerful central government,” Moseneke said.

He blamed the status quo on the fact that when the constitution was being drafted, its authors often had the then president — Nelson Mandela — in mind whenever there was a dispute on who should appoint “a public functionary”. “He, after all, would do the right thing,” Moseneke said. Two decades into democracy, and with our most recent history showing us that not every president would behave like Mandela, we should be taking Moseneke’s call for a review seriously.

The experience of the past few years, where unsuitable candidates get appointed to lead strategic public institutions such as the boards of SAA and the SABC simply because they are connected to the president or other political heavyweights, makes this review a matter of urgency.

Too many public institutions that are supposed to help safeguard our democracy have been weakened by the appointment of individuals who see their role as that of appeasing the head of state who appointed them, rather than carrying out their constitutional duties.

Surely it would serve the country and its citizens far better if the appointment to posts such as national police commissioner, South African Revenue Services commissioner and Reserve Bank governor were not entirely dependent on politicians in the executive. It would make such institutions more professional and protect them from undue political influence.

Now, in our 21st year as a democracy, this is a debate we should all have regardless of our political affiliation and beliefs. It is not about Zuma. It is about the future of our country and democracy.