STATE CAPTURE OP-ED
As the Zondo Commission reports show, it may be time to curb the President’s powers
While the final part of the Zondo report emerges — with the focus on corruption in the Jacob Zuma administration — it is perhaps time to concede that there could be too much power in the office of the president to appoint or dismiss functionaries in the public service, police, intelligence and public entities.
In summary, the Zondo Commission has found that former president Jacob Zuma was a key player in State Capture, facilitated in large part by his appointment and dismissal of important state functionaries. Written against the backdrop of Nelson Mandela’s formidable reputation, the South African Constitution allows for a hefty concentration of power in the hands of the president. Those who have succeeded Mandela have demonstrated that this faith in the head of state was misplaced.
The Constitution’s various subsections in regard to the president’s appointments in public service, police, intelligence and public state entities, stipulate that the requirements are to meet the somewhat arbitrary standard of being a “fit and proper” person.
A naïve reading of the Constitution suggests that it confers only reasonable powers on the president; powers which exist within a carefully balanced system separating the capacities of the three spheres of government. In line with modern law around the world, the Constitution attempts to place some restrictions on the president’s powers by requiring that he or she “consult” with executive deputy president(s) and other members of Cabinet in matters of executive decision-making. The Constitution also requires the “approval” of other executive decisions by the National Assembly in other contexts.
For other appointments, however, the president appears to have the power to appoint state functionaries subject only to his determination that they possess certain qualifications and are fit and proper persons to hold that office.
A closer reading of the Constitution together with the realities that have emerged from the State Capture enquiry reveals that a kleptocracy under the Zuma administration was made possible without violation of the written law. This arose partially through misuse of the executive powers conferred upon the president to appoint or dismiss state functionaries.
The limitations on the authority of the president in the 1996 Constitution appear to assume a soundness of moral character in the incumbent, not to speak of an ability to rationally apply his or her mind to what constitutes fitness for high office. Implicit is a “trickle-down” effect: if the president makes appointments “in good faith” of “fit and proper” persons with proven competence in the relevant positions, then good governance is assumed to follow.
Alas, the inverse is also true, as has been illustrated under the Zuma administration.
The 1996 Constitution — the one that currently applies — was finalised during the presidency of Nelson Mandela. The drafters of the Constitution did not give adequate consideration to the possibility that Mandela’s successors may not be cut from the same moral cloth. Limits to presidential powers to appoint that could readily be abused were therefore not set. As the president has the power to appoint certain functionaries, subject only to the loose and ex post facto control of legality, it is to be expected that he or she would choose people aligned with his or her vision and policies.
The president’s powers to appoint (and dismiss)
Section 84(1) of the Constitution, titled Powers and Functions of the President, provides that the president “has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive”. Further to this, section 85(2)(e) of the Constitution provides that the president exercises executive authority by performing “any other executive function provided for in the Constitution or in national legislation”. As head of the executive, the president is given the responsibility to appoint Cabinet and to influence the Cabinet’s appointment of senior officials in the public service and state-owned enterprises.
In Chapter nine’s “general provisions” on appointments in section 193(4) the Constitution stipulates that the president, “on the recommendation of the National Assembly”, must appoint the Public Protector, the Auditor-General and members of commissions.
The president has power to appoint members of public bodies, or “organs of state”. Section 239(1) defines an “organ of state” as “(a) any department of state or administration in the national, provincial or local sphere of government” and (b) “any other functionary or institution”. Below are some examples of the president’s boundless powers to appoint and dismiss state functionaries.
Section 193(3) states that the Auditor General is required to be “a woman or a man who is a South African citizen and a fit and proper person to hold that office”. Further to this, it provides that “specialised knowledge of, or experience in, auditing, state finances and public administration must be given due regard in appointing the Auditor-General”.
National Director of Public Prosecutions
The Constitution in section 179 states that the prosecuting authority consists of a) the National Director of Public Prosecutions (NDPP) and b) Directors of Public Prosecutions and prosecutors. The latter are determined by an act of Parliament, but the NDPP, as the head of the prosecuting authority, is appointed by the president. The national legislature (Parliament) is required to “ensure that directors “are appropriately qualified [and] are responsible for prosecutions in specific jurisdictions […]”.
While it may be assumed that the NDPP’s requirements for appointment (by the president) implicitly follow the same stipulations as that of the directors appointed by Parliament as per the 1996 Constitution, this is not stated plainly. Nevertheless, the 1998 National Prosecuting Act appears to clear this up in its section 12(6) delineation that “any person appointed an NDPP must be: a fit and proper person with due regard to his or her experience, consciousness and integrity to be entrusted with the responsibility of the office concerned”.
Despite this post-constitutional clarification, the fact remains that it is stipulated in black letters that the appointment of the NDPP is at the sole discretion of the president. The implication thereof is that the president has the power of influence to steer NPA cases in the direction that works in his or her favour, thereby tarnishing the constitutionally provided independence of the institution.
The National Commissioner of Police
Section 207 (1) of the Constitution states that “the president as head of the national executive must appoint a woman or a man as the National Commissioner of the police service, to control and manage the police service”. Further to this, the section confers responsibility on the National Commissioner to “exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing. Section 207 goes on to list the responsibilities of the Police Commissioner but is not otherwise specific as to his or her requirements for appointment.
It may be assumed that constitutional requirements for the Police Commissioner’s appointment — such as having relevant qualifications or policing experience, as well as being considered a “fit and proper” person are implicit in section 193’s “general provisions” in Chapter Nine State Institutions Supporting Constitutional Democracy. Therein it is stated that “members of any Commission established by this Chapter must be women or men who are (a) South African citizens (b) are fit and proper persons to hold the particular office and (c) comply with any other requirements prescribed by national legislation. In section 207(3), the responsibility of the National Commissioner to appoint a person as the Provincial Commissioner must be done in agreement with the concurrence of the provincial executive.
The problem is obvious. Should the National Commissioner be inadequately vetted by a president whose standards of propriety are lacking in certain respects, the scope for bad appointments down the line is very real.
Head of Intelligence
As with the powers afforded to the president to appoint the NDPP and the National Police Commissioner, similar limitlessness applies to that of heads of intelligence services.
In section 209, the Constitution states that “any intelligence service, other than any intelligence division of the defence force or police service, may be established only by the president, as head of the national executive, and only in terms of national legislation”.
Section 210 attempts to give some room for some limitation on the president’s power of appointment of intelligence bosses, stating that “national legislation must regulate the objects, powers and functions of the intelligence services, including any intelligence division of the defence force or police service”.
Nevertheless, the sentence that follows refers back to the president stating that national legislation “must provide for civilian monitoring of the activities of those services by an inspector appointed by the president […] and approved by a resolution adopted by the National Assembly with a supporting vote of at least two-thirds of its members”. The truth, however, is that processes of achieving consensus from the National Assembly are rendered meaningless if the Assembly is largely loyal to the president.
Chapter 9 institutions
Similarly, requirements for appointments for the positions of the Public Protector and members of commissions are that they are women or men who “are South African citizens; are fit and proper persons to hold the particular office; and comply with any other requirements prescribed by national legislation” (s193(1)).
Most of the above appointments (and removals), although made ultimately by the president, are the culmination of a process through which candidates for appointment are subjected to professional, committee, legislative, media and public recommendation and scrutiny. This is particularly true in regard to Chapter 9 institutions.
In Chapter 9 Section 193(5), it provides that “the National Assembly must recommend persons who are (a) nominated by a committee of the Assembly proportionally composed of members of all parties represented in the Assembly; and (b) approved by the Assembly by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly, if the recommendation concerns the appointment of the Public Protector or the Auditor-General; or of a majority of the members of the Assembly.” Moreover, 193(6) states that “the involvement of civil society in the recommendation process may be provided for […]”.
Similarly, the president also appoints judges to the courts deemed “fit and proper” by the Judicial Service Commission (JSC) and whose profiles are made public by the media in the run-up to the date of appointment. Deficiencies in candidates for a commission appointment have a good chance of being exposed during this process.
Should the president persist in appointing a person whose lack of quality has become obvious during the process of appointment, evidentiary material exists to challenge the exercise of the president’s prerogative to appoint them. The selection procedure is more unilateral when it comes to certain state functionaries in the public administration.
The rule of law and the implicit dicta of ‘acting in good faith’
Section 96(2)(b) of the Constitution provides that the president is not to act in a manner which exposes himself or herself to any situation involving the risk of a conflict between their official responsibilities and their private interests. The capture and implosion of the South African state at the hands of president Jacob Zuma and his allied forces is an affront to Section 96(1). The avoidance of a conflict of interest is a universal moral standard.
The same principle, assumed on the part of the drafters of the 1996 Constitution, applies to the written law of the Constitution at large with specific regard to duties and responsibilities conferred to the president and his or her chosen people to care for the state.
The office of the president in South Africa is, of course, not merely a constitutional construction but is also deeply political. The incumbent is head of the national executive and therefore tied into the business of “politics as usual”. The Constitution is insufficiently precise in circumscribing the president’s powers. It is thus often left to the courts to impose limitations on the exercise of presidential powers, a situation that in itself leaves much to be desired in terms of the separation of powers.
There are various statutes that deal specifically with the particular positions in the intelligence and policing sectors and so on. The relevant provisions here are: sections 33,34 and 85(2), and 209(2) of the Constitution, section 12(2) of the Public Service Act (PSA), and section 6(2)(c) of the Promotion of Administrative Justice Act, 8 2000 (Paja).
The law on public administration
It is therefore plain that the Constitution and applicable statutes give the president extensive power to appoint certain functionaries. In accordance with the strict application of the principle of separation of powers of the legislature, the judiciary and the executive, the Constitution only allows for judicial review “on narrow grounds and constitutes executive action and not administrative action”.
Former Deputy Chief Justice Dikgang Moseneke in the Constitutional Court case between Masetlha and the President of South Africa (2007) writes that “it is clear that the Constitution and the legislative scheme give the president a special power to appoint and that it is only reviewable on narrow grounds and constitutes executive action and not administrative action”.
In other words, for a court of law to question the constitutional validity of the president’s pardoning power largely sits on the testability of whether the decision-making (with regard to appointing or dismissing) amounts to conduct of an “executive” power, rather than administrative. That is, if a particular appointment or dismissal constitutes an executive decision, it cannot easily be revoked.
If, however, it characteristically amounts to “administrative action”, it can be reviewed through its testability under the Promotion of Administrative Justice Act (2000) (Paja) read together with whichever act is applicable to the specific job post in question.
The aforementioned case in 2007 between then-president Thabo Mbeki and former Director-General of the National Intelligence Agency, Billy Masetlha is one of two Constitutional Court judgments that are most often cited with regard to the president’s powers.
The other, which was also against Mbeki, is the President of the Republic of South Africa vs the South African Rugby Union in 1999. It must be stressed that neither of these cases reflect on the president’s discretion in making their appointments. They exclusively deal with the conditions upon which the president’s powers to dismiss — “an essential corollary of the power to appoint” (DCJ Moseneke) — can be questioned or rendered invalid.
In the case between the president and Masetlha, Moseneke DCJ reminds that “it is important to understand that section 1 of Paja expressly excludes, from the purview of administrative action” executive powers or functions of the president “referred to in section 85(2)(e)”. The implication thereof is that “presidential decisions which constitute the exercise of executive powers and functions under section 85(2)(e) are clearly not susceptible to administrative review under the tenets of Paja even if they otherwise constitute administrative action”.
Matsetlha’s application for the Constitutional Court to review and set aside his dismissal was based on the grounds that his dismissal did not comply with the procedural fairness requirements of the Paja, or alternatively with the principle of legality, or further alternatively, recognised by our common law.
Judge Moseneke, agreeing with the high court’s prior judgment, ruled in favour of the president on the premise that the dismissal of Masetlha was an exercise of executive power in terms of s 85(2)(e) of the Constitution, and was, as such, excluded from the definition of “administrative action” under s 1 of the Paja. Judge Moseneke concluded that the president had the implicit power to dismiss Masetlha when it came to amending his term of office, in terms of section 209(2) of the Constitution, read together with section 3(3)(a) of the Intelligence Services Act 65 of 2002.
Judge Moseneke rejected Masetlha’s law argument on the basis of “the special legal relationship that obtains between the president as head of the national executive, on the one hand, and the Director-General of an intelligence agency, on the other”, and, because the president’s power to dismiss derives from national legislation and the Constitution. Judge Moseneke reasoned that the powers of the president to appoint and dismiss should be subordinate to the principle of legality.
Constitutional Court Judge Sandile Ngcobo in his minority judgement (with which his colleague Judge Tholie Madala concurred) agreed that the president had the implicit power to dismiss Masetlha, but disagreed that the president could unilaterally alter Masetlha’s term of office without consulting Masetlha, finding that the president’s failure to consult was inconsistent with the rule of law.
In considering whether the principle of legality, an aspect of the rule of law, has a “procedural component”, Judge Ngcobo held that “in the context of the Constitution”, the rule of law refers to “a wider concept and a deeper principle” than mere non-rational decisions: that of “fundamental fairness”. Judge Ngcobo contended that the requirement of “fundamental fairness” ought to extend to the exercise of executive powers because “those who exercise public power must act fairly”.
He continued further by observing that acting fairly would involve decision-makers being afforded “the opportunity to hear the side of the individual to be affected by the decision” and would enable decision-makers “to make a decision after considering all relevant facts and circumstances” which would serve to minimise arbitrariness.
The above case followed an earlier judgment of the Constitutional Court involving the South African Rugby Union (Saru), where the position was summarised thus: “The exercise of the powers must not infringe any provision of the Bill of Rights; the exercise of the powers is also clearly constrained by the principle of legality and, as is implicit in the Constitution, the president must act in good faith and must not misconstrue the powers. These are significant constraints upon the exercise of the president’s power.”
In the Saru case, the court explicitly distinguished between executive and administrative action. It held that the power in question was conferred upon the president and that it was an original power, derived directly from the Constitution.
In that particular case, the court said that the constraints on the exercise of the president’s power were to include the principle of legality and expressed the opinion that as was “implicit in the Constitution, the president must act in good faith and must not misconstrue [his/her] powers”. Acting “in good faith” is, however, a necessary but not sufficient requirement of the exercise of presidential powers of appointment being consistent with the rule of law.
Supreme Court of Appeal judge and law professor Clive Plasket, writing in the Annual Survey of South African Law in 2008, made a principled argument against the Deputy Chief Justice’s majority judgment in the 2007 case between the president and Masetlha. Plasket describes Judge Moseneke finding that procedural fairness is not a component of the rule of law as “simply wrong”. He emphasises that “the very theory of the rule of law, but for that pale version that would have legitimised the law of Nazi Germany and Apartheid South Africa, includes procedural fairness.”
Accordingly, amendments to the Constitution could be made in order to limit the scope of the president’s power of appointments, especially with regard to sensitive security institutions. These amendments should provide that the appointment of all state functionaries must be made subject to a public process, with parliamentary oversight, wherein the relative merits of a candidate are first thoroughly scrutinised. The report of the Zondo commission is instructive. DM
Alexandra Willis is the Brenthurst Foundation’s Machel-Mandela Research Fellow.