On Tuesday the National Assembly voted to recommend that President Jacob Zuma appoint Vuma Mashinini as the new commissioner on the Independent Electoral Commission. While Mashinini appears to have a strong track record with elections, it’s the fact he has been a special advisor to Zuma that suggests Zuma is likely to assent. The disturbing aspect to this is not so much that Mashinini may be ‘Zuma’s man’ but that all the opposition parties object to this appointment. It could bring us closer to a day when opposition parties may decide to reject election results, or refuse to recognise the legitimacy of the body that runs them. But it also raises other questions, about how should we appoint people who need to be neutral to run the institutions that we need to run our democracy. By STEPHEN GROOTES.
On Wednesday on the Midday Report Professor Steven Friedman made the incredibly important point that when it comes to running elections, you “can have all the technical expertise that you like” but if you’re not seen as neutral, and perceived as independent, no one is going to trust you. He went on to say that, in the end, elections are about the trust the loser has in the fairness of the process.
Those interesting people who wrote our Constitution were very much aware of this; you can imagine the thinking that went into this process before we’d even had our first democratic elections. The system they thought up/negotiated/agreed to after too much coffee one night, was a sort of hybrid system. First, there would be a call for nominations, then a panel would interrogate those nominated, in order to ensure they were the right kind of person. That panel would be made up of the Chief Justice, the public protector and the heads of the Human Rights and Gender Commissions. After that, the home affairs committee in Parliament would vote upon the nominees, before the National Assembly itself would vote on them. And then, finally, the president would actually make the appointment.
As a system designed to keep scoundrels from running the Independent Electoral Commission (IEC), it’s pretty impressive. Surely no one would survive all of that if there were a big black mark against him or her.
However, it is less good at keeping out people who have no obvious disqualification, but still aren’t quite the right person. There is no formal reason why Mashinini should not be appointed, nothing for any lawyer to attack, and no bad story from his past that suggests he’s not ‘fit and proper’. All that there is the perception that he is too close to the president and the African National Congress (ANC).
Unfortunately, in the atmosphere of full-blown polarisation and mistrust, this is bad enough for all the opposition parties to object to this appointment, with possible serious consequences down the track.
This is a problem that comes up time and time and time again. In all democracies, the system used to appoint people to important jobs has to feature the legislature at some point, otherwise the will of the people is being ignored. Think of the senate hearings in the US for prospective Supreme Court judges or the current protracted confirmation process of confirming Loretta Lynch as the new attorney general. As in the US, our politicians have become so divided that it is hard for them to work together even when candidates that could be seen as “neutrally good” arrive.
To complicate matters still further, many of the people who are of the right calibre for complicated jobs, such as say the public protector, or a position on the IEC, or a national police commissioner, are likely to have been someone with the ANC somewhere in their background. If you were black and of such a calibre in the ’70s and ’80s, you probably joined the ANC somewhere along the line, you wanted to better yourself and fight for a better society. This makes it harder to find candidates who are seen as completely neutral by everybody.
That said, there must surely be a system we can all use, which does actually include Parliament in some way. And of course, it must be said that the system currently in place would be working better than it is if there was proper political management by the ANC, and by those who decided Mashinini it would be. There were plenty of other people on the list approved by the Chief Justice’s panel who could have been appointed, who would have been acceptable to everyone.
There will be some that say Parliament should have no say in these appointments at all, that politicians can’t be trusted. Those people will also tend to be those critical of the ANC, and the response would be simply that they are looking for a way around the fact that party won the last election. There’s no other way: Parliament has to stay in the process. But perhaps the current model could be turned around. Maybe Parliament should agree on a list of people it nominates, and then the panel makes the final selection? That might be the best of both worlds: there is a check on the politicians, but they are still involved.
Or, perhaps, for the IEC, there should be a system where there must be at least one commissioner nominated by an opposition party for the organisation at all times. That would perhaps go some way to mollifying those parties. At the moment that would mean it would probably be a Democratic Alliance (DA) nominee on the IEC, but it may result in the Economic Freedom Fighters (EFF) accepting the result of an election without much problem.
Maybe the out-going IEC commissioners should be involved in the process in some way, too. The problem there could be that they would have influence after they’ve left the organisation; that could be good or bad, depending on how they themselves behave.
Another suggestion could be to introduce a series of qualifications or disqualifications necessary to be appointed. So, anyone who has ever been involved in politics could be automatically disqualified, for example. That would have to be carefully defined: Mashinini hasn’t been involved in public politics, but it could be claimed he has been involved in behind the scenes politics through being an advisor to the man who is now president.
This is a problem that is likely to only get worse over the next few years. It seems undeniable that the ANC’s share of the vote is declining, and that it is facing more competitors. This would appear to make it more likely for its bosses to choose people they can trust in certain positions, rather than the best possible person for the job. As a result we are likely to see this dynamic playing out again and again.
Still. It is not in the ANC’s interests to change the systems we have at the moment for appointing people. So don’t expect any change soon. DM
Grootes is an EWN reporter.
Photo: Outside a voting station in Dobsonville, Soweto, South Africa, 07 May 2014. It is 20 years since all South African’s regardless of race where able to vote freely and the end of the White minority rule Apartheid system. EPA/IHSAAN HAFFEJEE