ActionSA’s move to tone down the power of the president over the executive should be welcomed, though it remains too limited in scope to adequately shield SA institutions from potentially malevolent future first citizens.
The party has introduced a bill to amend the constitution that would overhaul the way the executive is appointed, do away with deputy ministers and cut down on ministerial perks. The bill’s overriding theme is to check the unfettered power accorded to the president, including the prerogative on appointments to and removals from the executive.
Former president Jacob Zuma’s ability to wield power inside the ANC and the government were directly linked to the vast powers accorded to the holder of the presidency by the constitution.
Even before he stepped into the Union Buildings, Zuma wielded this power — his predecessor, Kgalema Motlanthe, disbanded the Directorate for Special Operations (the Scorpions), a decision of the ANC linked to the unit’s pursuit of Zuma on corruption charges linked to the arms deal that he has yet to answer almost two decades later. The implications of that single act are still being felt in the criminal justice system.
The presidential prerogative to make key appointments to the cabinet and critical institutions such as the National Prosecuting Authority and the police is made in consultation with the respective ministries — but the ministers occupy their posts at the president’s pleasure.
The president is also tasked with appointing the public protector, auditor-general and other Chapter 9 institutions, on recommendation by the National Assembly. That did not prevent the likes of Busisiwe Mkhwebane from being appointed to the Office of the Public Protector, despite misgivings over her links to state security. She was later fired after parliament voted in favour of her removal due to an inquiry into her fitness to hold office. Yet for diplomatic and security appointments, no such recommendation is required — the president’s powers are essentially unfettered.
Then there are the lesser-known appointments, some of which also proved detrimental to SA — think of the R100bn shortfall in tax collection due to the hollowing out of the SA Revenue Service (Sars) under former commissioner Tom Moyane. While not constitutionally enshrined, the appointment of the Sars commissioner falls under the SA Revenue Service Act, which states unequivocally that the appointment rests with the president.
While there have been moves to tighten this process, as recommended by the Commission of Inquiry into Tax Administration and Governance by Sars, chaired by retired judge Robert Nugent, the status quo remains. President Cyril Ramaphosa appointed a panel chaired by former finance minister Trevor Manuel to appoint current Sars commissioner Edward Kieswetter, but this was a preference and not codified in law.
Another president may choose to simply exercise their prerogative.
In 2014, then deputy chief justice Dikgang Moseneke caused a stir when, in a public lecture, he declared it was time to review the immense power accorded to the president by the constitution. Moseneke argued that powers to appoint also come with the power to dismiss or remove, and these had to be shielded from the “personal preferences and vagaries of the appointing authority”.
He also warned against members of the executive being MPs — which holds the executive to account.
Former chief justice Raymond Zondo said last week that the constitution also accords the president too much power in judicial appointments, leaving a vital arm of government vulnerable to capture and manipulation.
Coalitions can culminate in woefully inadequate candidates being elevated to top positions, as witnessed by the City of Johannesburg where an ANC/EFF coalition has orchestrated the appointment of successive mayors who were members of the Al Jama-ah party.
ActionSA is on the right track, but curbing the legally enshrined powers of the president needs to go further than the executive. Given that SA has entered a coalition era, it is crucial also to revisit the immense presidential powers over diplomatic, security and judicial appointments.
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