South Africa

The making of a Cabinet

Ramaphosa mulls his options – and it’s complicated (legally/politically)

Public Enterprises Minister Pravin Gordhan in Johannesburg, South Africa 19 Marh 2019. Photo: Felix Dlangamandla/ Netwerk24/Gallo / Deputy President of South Africa David Mabuza, 27 August 2018 (Photo by Gallo Images / Netwerk 24/ Deaan Vivier) / African National Congress secretary-general Gwede Mantashe at the NASREC Convention Centre, Johannesburg , South Africa, 16 December 2017. EPA-EFE/CORNELL TUKIRI

President Cyril Ramaphosa didn’t announce his Cabinet as was widely expected on Sunday, nor will he announce it on Monday. Instead, the presidency said it would happen later in the week, date unknown. It’s uncharted waters.

Officially, there is no crisis. But even on this account, it is unprecedented that a day after assuming office the new president of South Africa has neither announced a Cabinet, nor indicated a firm time and date on which such an announcement would be made.

Sunday’s confirmed delay in the Cabinet announcement has come in the wake of governing ANC ructions, including Deputy President David “DD” Mabuza’s decision not to be sworn in as one of the 400 MPs on Wednesday pending answering allegations before the ANC integrity commission.

And it interrupted the flow of an up to now adhered to timeline on a widely circulated document under the ANC logo, which had the Cabinet announcement on Sunday or Monday, followed by the swearing-in of ministers and then into an ANC National Executive Committee (NEC) lekgotla from 31 May. Separately, Daily Maverick has reliably learnt Sunday had been set aside for consultations and individuals being called in.

Sunday’s presidency statement said, “the (Cabinet) announcement will be made later in the week”. It added: “President Cyril Ramaphosa is emphatic that the new executive must possess requisite skills, experience, representativity and a commitment to the public services that will take the work of the sixth administration forward”.

Ramaphosa’s spokesperson Khusela Diko told Daily Maverick: “The president said he wants to consult widely. He wants to take his time”.

The much anticipated Cabinet announcement will be one of the most telling right at the start of his presidency, both in terms of being able to cut the executive from about 72 ministers and their deputies to about 25 ministries or thereabouts, and getting who he chooses, regardless of pressures from within the factionalised ANC.

But the current situation has raised an interesting constitutional poser: Right now, South Africa has a president, and an administration of directors-general.

Section 87 of the Constitution gives five days after election by the National Assembly for the president to assume office “by swearing or affirming faithfulness to the Republic and obedience to the Constitution”. That happened at Saturday’s inauguration, on the third day after Ramaphosa’s election in the National Assembly on Wednesday.

According to Section 88 (1) of the Constitution “The President’s term of office begins on assuming office…” which means Ramaphosa is definitely in office, just alone in the executive. That’s because Section 94 of the Constitution states the outgoing Cabinet and deputy ministers “remain competent to function until the person elected president by the next Assembly assumes office”. As of Saturday, Ramaphosa assumed office, given he took the oath of office at Loftus Versfeld, effectively ending the term of the Cabinet without a new Cabinet announced.

Go figure, this may just be a constitutional exam question for future law students. But the cause of the current situation is the governing ANC’s factional battles — and what possibly could be a miscalculation by Mabuza, who by all accounts never really comfortably took to his national government job and responsibilities.

Mabuza had decided to “postpone” his swearing-in pending addressing allegations against him with the ANC integrity commission, the ANC presidency announced on Wednesday morning. It was a face-saving measure — a leaked ANC communication has him “declining” his seat and even named his replacement on the parliamentary benches — or it was a move to up the ante in internal ANC politicking?

Mabuza may have been ill-advised, as has been Ramaphosa, who according to both the Sunday Times and City Press had urged Mabuza to stay on to be sworn in. In ANC tradition, the ANC deputy president being the country’s deputy president is the norm, with the exception of Phumzile Mlambo-Ngcuka (2005-2008). But by not taking the oath with all other MPs Mabuza effectively stepped out of the Union Building, unless he becomes one of the maximum two appointments from outside the ranks of MPs.

If Mabuza, or Ramaphosa, hoped that the “postponed” swearing in would happen — say, as soon as Tuesday when the integrity commission reports back to Luthuli House — it may just not be quite that simple.

Neither law nor regulation nor precedent make a particular provision for a postponement in taking up one’s seat in Parliament. Under the Electoral Act and Electoral Commission of South Africa (IEC) regulations the political parties, effectively, had been in charge of their public representatives’ list until the moment the MPs were sworn in. In law and regulation that moment, Wednesday, marked the closure of this eligibility window and it will now be a year before the political parties can replenish, reorder or change their lists. And Parliament also lacks a particular precedent for such a “postponement” for which neither a medical certificate nor court proceedings are applicable.

Should Mabuza move to be sworn in this would pressurise Speaker Thandi Modise into a political decision that puts her in a corner, and liable to pay a political price right at the start of her five-year term. Opposition parties had urged for fairness and even-handedness shortly after Modise’s election on Wednesday to mark a decided turn from her predecessor, Baleka Mbete. Opposition parties had been critical of Mbete, accusing her of bias and of shielding the president.

Now that it’s official there would be no Cabinet announcement until “later in the week”, a series of tricky political calculations must unfold over the next few days.

Those reckonings start with whether the integrity commission would “clear” Mabuza by Tuesday, the day the commission would submit its full report to Luthuli House ANC headquarters, according to commission chairperson George Mashamba’s comments to both the Sunday Times and City Press.

It would be highly unusual for Luthuli House to make a pronouncement, as traditionally integrity commission reports and recommendations must go for approval and ratification to the ANC NEC. That highest decision-making body between ANC national conferences is only set to meet from 31 May.

But in the frantic computations that must be happening right now, Tuesday’s ANC process may just be deemed good enough to take as the springboard to complete government processes, such as appointing a Cabinet. That would be particularly so if Ramaphosa is dead set on following ANC tradition of having his deputy in the party also in the state. But if this is what Ramaphosa is waiting for before announcing his Cabinet, politically it would appear his hands remain tied by ANC factional jockeying and the actions of others, such as Mabuza.

Right now the political cost of the ANC factional politicking on institutions of the state — be it Parliament or Cabinet — is difficult to establish. But it looks like ANC party political machinations continue to dominate the political drama that is holding the country captive, and from starting to resolve the deep and fundamental challenges of South Africa. DM