SA’s Constitutional Democracy?

The path of Ramaphosa’s letter for major SANDF deployment raises serious concerns around separation of powers

By Marianne Merten 23 April 2020
Caption
CAPE TOWN, SOUTH AFRICA - APRIL 16: A general view of a soldier of the South African National Defence Force (SANDF) manning a 24-hour roadblock on the N2 near Khayelitsha on Day 21 of the National Lockdown on April 16, 2020 in Cape Town, South Africa. (Photo by Gallo Images/Roger Sedres)

When a president usually so focused on following correct processes goes astray like this, it signifies something is potentially very, very wrong. And when the military decides to diss accountability to Parliament - it is time to raise the alarm.

President Cyril Ramaphosa’s misdirection of the constitutionally required SANDF deployment letter for SA’s largest-ever military mobilisation to a parliamentary committee and not Parliament’s leadership, raises questions. As does Wednesday’s securocrat conduct by top defence generals before the Joint Standing Committee on Defence.

The charitable explanation for it would be the Presidency made a mistake sending the deployment authorisation letter required in terms of Section 2o1(2) of the Constitution to the co-chairpersons of the Joint Standing Committee on Defence.

But the president got it right, absolutely right, on scores of previous occasions when letters were sent to Parliament’s presiding officers – be that various State of the Nation Addresses, the deployment of soldiers to gang-ridden Cape Flats in July 2019 and, most recently, the deployment of 2,820 soldiers from 23 March as part of the Covid-19 lockdown, in a letter that was sent to Parliament’s presiding officers two days later.

Another explanation exists: the Presidency is bypassing traditional and established correct channels of cooperation between the executive and legislative spheres of state.

But when a president usually so focused on following correct processes goes astray like this, it signifies something is potentially very, very wrong.

In South Africa’s constitutional democracy, the head of the executive, the president, writes to the leaders of the legislative sphere, Parliament’s presiding officers.

The speaker of the National Assembly and the chairperson of the National Council of Provinces (NCOP) then formally refer such communication to the defence committee – and the presidential letters are published in the Announcements, Tablings and Committee Reports (ATC), or the record of Parliament’s work.

Then the Joint Standing Committee on Defence meets to discuss and deliberate on the deployment authorisation to consider whether or not to support it. The committee’s decision goes to the Houses for approval.

Tedious? Maybe. But this process is a crucial part of the checks and balances, and imperative for cooperative governance and accountability in South Africa’s constitutional democracy.

Little of this happened with Ramaphosa’s letter dated 21 April 2020.

That one-pager says the president decided “to employ (sic) an additional 73,180 members of the SANDF”, from the regular force, auxiliaries and reservists, until 26 June 2020 at a cost of R4.59-billion because “(t)he outbreak of Covid-19 continues to increase with reported cases across the Republic of South Africa”.

As military researchers African Defence Review say, it is SA’s biggest-ever SANDF deployment, at least on paper, although it remains to be seen how it will unfold in practice.

The timeline of this constitutionally required presidential letter is important.

That letter was sent to the chairpersons of the Joint Standing Committee on Defence the same day it was written, 21 April. Co-chairperson Cyril Xaba is on public record saying he distributed the letter to committee members.

By 8.03pm that letter was tweeted by DA interim leader John Steenhuisen, who added: “I have requested the presidency to urgently confirm this information”.

At 11pm, according to the posting time-stamp on Parliament’s website, the defence committee announced it was holding a meeting the next day, Wednesday 22 April, “to consider the letter from the President on the Employment of the South African National Defence Force (SANDF)” alongside other Covid-19 lockdown related matters and a report back by the Military Ombud on complaints against soldiers.

At noon on Wednesday, Defence Minister Nosiviwe Mapisa-Nqakula and her deputy were ready to brief parliamentarians together with SANDF Chief of Staff Lieutenant-General Lindile Yam, SANDF Chief of Joint Operations Lieutenant-General Rudzani Maphwanya and Defence Secretary Sam Gulube.

Over the next three hours, the Joint Standing Committee on Defence proceeded to consider – and ultimately approve – this presidential Covid-19 lockdown deployment letter, the letter dated 25 March authorising the first such deployment, and letters for the repatriation of South Africans form the coronavirus epicentre of Wuhan and extending an existing SANDF deployment.

 

“My response to that was it was the president’s generosity to do that,” said the defence minister. “My attention was brought to that, that during recess the president has an obligation to send a letter to the chairpersons. So there is nothing wrong.”

 

Also on Wednesday 22 April, Parliament’s presiding officers, Speaker Thandi Modise and NCOP Chairperson Amos Masondo, finally received that presidential deployment letter, Daily Maverick has learnt.

That letter – and the presiding officers’ referral of it to committee – was rushed into the ATC, which was published after 4pm on Wednesday 22 April. This speed is highly unusual. It usually takes at least 24 hours for submitted documentation to be published.

In an official statement, Parliament confirmed receipt of the presidential deployment letter, and publication in the ATC.

But concerns must be raised that, without the letter having been ATC-ed, the Joint Standing Committee on Defence decided to approve its latest Covid-19 SANDF deployment.

A case could well be made that it was incorrect of the committee to proceed – this flouted well-established parliamentary procedure, process and protocol – and that its decision is invalid.

And questions also must be asked over the ready availability of the defence political and departmental leadership, at unusually short notice.

In her opening remarks, Mapisa-Nqakula sought to deflect any taint of untowardness of how the presidential deployment letter reached the committee. She had been questioned in a radio interview earlier in the day. 

“My response to that was it was the president’s generosity to do that,” said the defence minister. “My attention was brought to that, that during recess the president has an obligation to send a letter to the chairpersons. So there is nothing wrong.”

Except, Parliament wasn’t in recess when the president wrote that letter. 

The national legislature resumed a week earlier, after the Chief Whips’ Forum on 14 April decided to approve Modise’s proposals for virtual meetings of committees directly dealing with Covid-19 lockdown matters.

So, the provision of Section 201(4) of the Constitution that makes provision for oversight committees to be directly approached if Parliament does not sit during the first seven days of the SANDF deployment doesn’t apply.

Also, president’s generosity is not a constitutional requirement.

Some may argue that because the presidential deployment sets the timeframe for this 73,180-strong deployment from 2 April – seven days later would make it 9 April, or the eve of Easter when Parliament was indeed in recess – the president was correct to direct his letter to the committee co-chairpersons.

But that would ignore the fact that the letter was also sent to Parliament’s presiding officers, even if arrival was delayed. And it would also ignore that the deployment letter of 25 March was sent to the presiding officers when Parliament was already five days in recess, as shown in ATC #36 of 26 March.

Mapisa-Nqakula sought to distance the defence department from any leaking of that letter, saying if the leaked document had had the president’s signature on it, the leak would have come from the Presidency or Parliament.

It was one of those comments. As were her comments that precisely outlined the decision-making at government’s top levels during this Covid-19 lockdown.

Key to this is NatJoints – the National Joint Operations and Intelligence Structure that brings together the SAPS, SANDF and intelligence since being established by a Cabinet memo in the 2000s. NatJoints does not publicly account to anyone; nor are its finances transparent as none of its participants’ budgets reflect a line item to show how much money is put towards the NatJoints secretariat.

“Right now, everything, whatever form of cooperation or collaboration, this is done by the NatJoints. They sit as officials. They work on a plan. They present to the [Covid-19] National Command Council,” said the defence minister.

Finish and klaar.

Against this background come the comments to MPs by senior SANDF generals that on Wednesday indicated tendencies bordering on the unconstitutional – an unwillingness to account to Parliament, and seeming readiness to be judge and jury.

Maphwanya drummed home how no one would be allowed to undermine the fight against Covid-19, which Ramaphosa as commander-in-chief has set for the SANDF.

“While we are being provoked, law enforcement will not allow anyone to insult the president. We will react immediately. It is important that this is known.”

Yet, South Africa has no presidential insult laws. 

The president, like any other person who feels insulted – the Bill of Rights guarantees equality before the law – must turn to the courts.

 

It’s not up to the military to diss accountability to Parliament.

 

But the general seems to have an interesting view of South Africa’s constitutional democracy with its three equal, independent but cooperating spheres of state – the executive, the legislature and the judiciary.

But, according to Yam, “the state is an instrument of government to ensure law and order is enforced”. He told parliamentarians: “You’re not our clients. We are not the police. We take instructions from the commander-in-chief [Ramaphosa].”

Except that the Constitution, in Section 198(d) as part of the governing principles for security services, clearly states, “National security is subject to the authority of Parliament and the national executive.”

It’s not up to the military to diss accountability to Parliament.

The securocrat comments from Yam are particularly concerning because as SANDF chief of staff he has a crucial role in drafting the deployed soldiers’ rules of engagement for their part in the fight against the Covid-19 pandemic.

The Joint Standing Committee on Defence did not challenge or rebuke generals Yam and Maphwanya.

Eagle eyes must watch. It will be crucial for South Africa who wins in the dynamics bubbling under the Covid-19 public health emergency – the securocrats or the constitutionalists. DM

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