Over the past six years President Cyril Ramaphosa’s agenda for state reform has provided a curious case study of the limits of exercising power and some of the more arcane rules regarding the appointment of senior public servants. SA’s constitution has a rather complicated approach to appointments and dismissals that have been put to the test under his administration.
The judiciary and other critical Chapter Nine institutions — where so much of the country’s hopes of holding the executive accountable are placed — are mostly protected from the chaos of arbitrary shuffles that were emblematic of the Jacob Zuma years through security of tenure rules. That means whatever reservations politicians and presidents might have regarding the performance of officeholders, they are unable to unilaterally press the fire button without being forced to explain the basis for the decision.
Even that process requires the type of third-party interrogation by parliament that provides scope for distinguishing between arbitrary calls for removal and substantive reasons for terminating underwhelming officeholders. This has meant that for the better part of the past 30 years few judges or heads of Chapter Nine institutions have ever had to be prematurely terminated.
While this may reflect the relatively robust processes in place at the vetting and screening stages, which at least reduce the scope for undesirable or incompetent prospectives ascending to office, it cannot be a perfect system on its own. Just like some elements of the constitution seemed premised on utopia, the rules regarding terminations and impeachments turned out to be less than clear when invoking them.
Consequently, processes relating to the removal of Chapter Nine office-bearers such as former public protector Busisiwe Mkhwebane and judges John Hlophe and Nkola Motata became an acute illustration of the prevailing gaps in the constitutional architecture. The consequence of this lack of clarity was a series of expensive lessons where everyone had something to learn at every turn and some lawyers had something to bill for.
Blind spots
While lessons have been learnt regarding some roles, it isn’t clear whether all potential blind spots have been canvassed enough for legislators to start putting together clear guidelines before being dragged into action at crisis points, paired with expensive litigation.
A secondary point of interest is the discrepancy between some critical roles that have clear and relatively robust processes of appointment versus the blank canvas that relates to some other roles. Since 2018 Ramaphosa has nobly sought to replicate the template of rules that exist somewhere in the system to jobs where no such guidance exists.
In appointing the SA Revenue Service commissioner the president adopted the guidance of the Nugent Commission and opted for a robust, transparent process that lent a sense of legitimacy to the post that had never been there before. While he sought to apply a similarly consultative process to the search for the national director of public prosecutions and the chief justice, the result was an awkward combination of one candidate that emerged from the process and has looked paralysed in the post since, and another who didn’t emerge as the recommended candidate but was appointed anyway.
The political hysteria surrounding the chief justice process unfortunately made it look like the president had ceded his prerogative through consultation. His call to then reject the recommendation of the Judicial Service Commission allowed him to show the prerogative was still his. These events seem to have chastised the president enough for him to revert to what he and other presidents have always been able to do in exercising their own discretion.
While no-one can deny him that, it would be a pity if the best lessons from the consultative processes evident in his experiments were to be abandoned in favour of the opaque system where no-one actually knows what makes one candidate worthy of appointment.
• Sithole (@coruscakhaya) is an accountant, academic and activist.
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