President does not have unfettered power to appoint NPA head
SINCE last week’s Constitutional Court judgment in Corruption Watch v President of the Republic of South Africa; Nxasana v Corruption Watch (CCT 333/17; CCT 13/18) [2018] ZACC 23 (August 13, 2018) a lot has been said about the effects of it in our society.
There are some parts of the judgment that deserve criticism for setting a bad precedent. However, a related aspect of the judgment is the appointment of the National Prosecuting Authority head.
The appointment of the NPA head is governed by section 179 of the Constitution read with the National Prosecuting Act. The section enjoins the president, as head of the national executive, to appoint the head of the NPA.
To understand what this means we need to read section 85 of the Constitution. Section 85 says that executive authority of the Republic is vested in the president, and that the president exercises executive authority with other members of the cabinet. In terms of our constitutional framework, cabinet is made up of the president, the deputy president and ministers, and they are collectively politically accountable for the exercise of their powers and functions.
Hence, when section 179 says the president appoints the head of the NPA in his capacity as head of the national executive, it essentially means that the president acts with the cabinet, which as of midnight yesterday was made up of 37 members, all of whom, with the exception of two, are constitutionally required to be MPS.
Section 179 must be distinguished from constitutional provisions that require the president to act as head of state (such as when he pardons convicted offenders) because in those instances he acts alone and the Constitutional Court has confirmed that he is solely responsible for decisions he makes as head of state.
Hence, contrary to what others have argued, President Cyril Ramaphosa will not act alone and is not solely responsible when he appoints a substantive NPA head. Instead, he will act with at least 36 MPS who serve in the cabinet.
There has also been a view that nothing constitutionally prevents President Cyril Ramaphosa from involving the public in the process of appointing a new NPA head.
Involving the public in the appointment process at this stage might be viewed as promoting democratic values in the sense that the preamble of the Constitution sets as a goal the establishment of “a society based on democratic values” and declares that the Constitution, pursuant to those values, lays “the foundation for and open society”.
And as Ngcobo J declared in the Doctors for Life case, the democratic system that is contemplated under our Constitution is a participatory democracy, which is accountable, transparent and makes provision for public involvement.
Nevertheless, in the first judgment of the Constitutional Court in S v Zuma 1995 (no, it is not Jacob Zuma) Kentridge AJ warned us that “while we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument”.
Kentridge goes on to say that “it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean”.
Further, he noted that we must always be reminded “that even a Constitution is a legal instrument, the language of which must be respected”. a democratic
The text says that the NPA head “is appointed by the President, as head of the national executive”, which, as I have said above, means the president acts with the cabinet.
Kentridge has taught us that the text is important and must inform how we view the Constitution.
Ramaphosa does not have unfettered power to appoint the next NPA head, as some might think.
Section 179 of the Constitution read with section 9 of the National Prosecuting Act constricts the president’s power to appoint by requiring that he appoint a person who, among other things, is a “fit and proper person, with due regard to his or her experience, conscientiousness and integrity”.
Ramaphosa and his cabinet need to carefully consider this political discretion in determining who will occupy the position of NPA boss.