South Africa

ANALYSIS

An argument for redefining presidential powers in South Africa

An argument for redefining presidential powers in South Africa
Illustrative image | Sources: (Clockwise from top left) Former president Jacob Zuma. (Photo: Waldo Swiegers / Bloomberg via Getty Images) | Former SARS Commissioner Tom Moyane. (Photo: Gallo Images / Papi Morake) | Former spy boss Arthur Fraser. (Photo: Gallo Images / Netwerk24 / Jaco Marais) | Zuma's leading spymaster and the former ambassador to Japan, Thulani Dlomo. (Photo: ambtdlomo.com) | Atul Gupta. (Photo: Gallo Images / The Times / Puxley Makgatho) | Former State Security Minister David Mahlobo. (Photo: Galo Images / Netwerk24 / Felix Dlangamandla) | Former State Security Minister Bongani Bongo. (Photo: Gallo Images / Brenton Geach)

Former finance minister Trevor Manuel has joined those asking if the power of the President to make certain appointments should be limited. Considering that SA may soon be ruled by a national coalition, this is a good time to assess whether the President does have too much power and whether it’s possible to curtail that power.

Delivering the opening address at the recent Daily Maverick The Gathering Twenty Twenty-Four, former finance minister Trevor Manuel said, “Our revolution was horribly disrupted” and asked whether there should be a national conversation about presidential powers.

As he put it: 

“So how should we engage with that vast area of presidential prerogatives? They include the unfettered power to appoint Cabinet and deputy ministers; the appointment of the heads of all of our security and intelligence services; and the appointment of all of our foreign representatives, without query or oversight. 

“Is this vast area of practice consonant with the spirit of our Constitution? Now, we all appreciate that open-ended and protracted negotiations were obviously not in the interests of democracy, but should we not have returned to these matters later?”

Our recent history, and particularly the State Capture era, shows how important this conversation is.

As far back as 2009, when Jacob Zuma assumed the presidency, it was obvious that he would appoint a person to run the National Prosecuting Authority (NPA) who would follow his wishes, which included that he would not be prosecuted.

He believed at the time that he had been persecuted by the NPA under Bulelani Ngcuka, who had been appointed to the position by his nemesis, Thabo Mbeki. So he appointed the worst choice possible, Menzi Simelane.

It was clear that Zuma used the power of the presidency to enable corruption.

He appointed Arthur Fraser as head of the State Security Agency (SSA), and then allowed Thulani Dlomo to run riot with the powers and resources of that agency.

He allegedly benefited from the millions of rand in cash that David Mahlobo took from the SSA.

Warnings about the misuse of the intelligence services had been ignored. In 2007, the analyst Aubrey Matshiqi told the intelligence services that they should not play a role in domestic politics.  

Other democracies

In many other democracies, a head of state or a president has the power to make a long list of appointments. But those are overwhelmingly the presidents who are directly elected. This means voters cast a ballot for someone directly, knowing what they will do once they are in office.

In the US, for example, people voted for Donald Trump knowing that he would appoint judges to the Supreme Court who would rule against Roe v Wade and allow individual states to ban abortion outright.

In SA, the President is elected by members of Parliament in the National Assembly. This means that, when people vote, it is still not entirely clear who the President will be. It also means that if the leader of a governing party changes, then the President will change too (as happened when Mbeki was recalled, and when Cyril Ramaphosa replaced Zuma).

Because SA’s politics is changing, it’s becoming harder to predict who will be President after the elections and who they will appoint to important positions. 

And because the President has the power to make appointments directly, like the Chief Justice (after consultation with the Judicial Service Commission), or a commissioner at SARS (under the current Act, anyone can be appointed, including someone determined to damage the institution, such as Tom Moyane), this could become a negotiating point during coalition talks.

Hypothetically, a political party could have leaders who are being investigated by SARS. As a condition for forming a coalition, they could demand that a SARS commissioner be removed and replaced by someone of their own choice.

Because the President has the power to make these appointments (and often to suspend people in some positions), this kind of situation could very well occur.

No President wants their power reduced but, in certain circumstances, there could be opportunities to reduce it.

If a president believes they are about to leave office or the party in power is about to be replaced, they might well agree to a reduction of their power.

Also, a group of political parties could agree before the elections that they would reduce the President’s power if they were to form a national government.  

Sometimes, a person assuming a position of power will limit their own responsibilities, such as occurred in the UK in 1997, when Tony Blair’s new chancellor of the exchequer, Gordon Brown, announced one interest rate change and then gave all of the power over monetary policy to the Bank of England.

Transparency

There are measures citizens can take to try to weaken the powers of the President. 

For example, Ramaphosa has established a panel to advise him on appointing the SARS commissioner and the National Director of Public Prosecutions.

Organisations could demand that the precedent be followed in future and that there be full transparency in the appointments that are made.

However, this may cause problems.

The power the President has allows them to act decisively — if they have a reform agenda, they can appoint people to important positions to make changes quickly.

This was the case at SARS, where Edward Kieswetter has been able to reform and almost renew the agency.

If the power of the President to make crucial appointments is reduced, or consultation is introduced as part of the process, it could lead to long periods of political negotiation before positions are filled. Considering how many people in government are in acting positions already, this could lead to positions being left vacant.

Unfortunately, despite Manuel’s well-founded concerns, the conditions that would allow the President’s powers to be reduced are unlikely to occur. Rather, it is more likely that political parties and politicians will cut deals involving the use of these powers, because this will serve them well.

Unless, of course, citizens can make reducing these powers the price of attaining the ultimate job in our politics. DM

Gallery

Comments - Please in order to comment.

  • Greeff Kotzé says:

    The President should appoint political office holders in the executive branch, such as ministers and deputy ministers.
    Parliament should appoint the President, and the judges leading the various court divisions (on recommendation from the JSC).
    The various Judges President and Chief Justice should appoint the judges/justices that serve in their division.
    And senior civil servants, such as the NDPP and the various Directors General, as well as board members of SOEs, should be appointed by civil society commissions (unremunerated) with seats on these commissions allocated (by legislation or by Parliament) to legitimate interest groups, a minority of party reps, and academic specialists in that field. Some existing bodies may be qualified to make certain appointments; NEDLAC could be given the task of appointing the DG of the Department of Labour, for example.

    It really shouldn’t be this hard to foster accountability and avoid the concentration of centers of power.

  • Herman Brummer says:

    I don’t think the governing party cares about this.
    They care about stealing and getting away with it, to think they care about anything else is delusional.

  • Michael Bowes says:

    I recall reading that this issue was raised with Mandela while the constitution was been negotiated, and it was put to to him that the power might be abused. He was outraged at the thought that because the president is a black man…………

  • James Baxter says:

    I am black boy from Ekurhuleni municipal township. I am calling on voters who are of African descent to seriously consider voting for a white president. We all are human being and are created by one God in heaven. It is time for our country to embrace a white president or a woman president. I beg you to move beyond racial biases and preconceived stereotypes and embrace a new understanding of multiculturalism. Voting for a white president don’t mean you are a self hating African. It only means you are capable of transcending your biological limitations that have been brought upon by our evolutionary history whereby we or our early ancestors evolved in small bands of people who looked exactly like them.

    • Jane Crankshaw says:

      If this country was truly non racial your request would be unnecessary. Unfortunately BEE policies prohibit this country from being free and fair. Get rid of BEE and any other policies based on race and we might have a real chance of a bright political and economic future.

    • trevor mk says:

      are you not motivating for a racial bias?

      • Jane Crankshaw says:

        No – just fair play so everyone can benefit from a working economy with jobs, education etc. with 20% of the people paying 80% of the taxes we are on a journey to disaster! Throwing good money after bad…thanks yo racial policies like BEE.

    • Malcolm McManus says:

      Are we allowed to vote for who we want for president?. That would be the starting point. Quite frankly I don’t care about skin color or gender. I just want the most competent person with a sound moral compass, who cares about the people and who makes rational decisions to take the reigns of the country. Someone with a backbone who actually makes a positive difference.

    • Anthony Krijger says:

      Some white presidents are just as bad. Look at Eastern European history for good examples. South America (Brazil & Argentina included) Its better to simply vote for the best and most honest man to do the job. And colour-coding should have long been a thing of the past in this country. As long as we have BEE we will have wealthy black people enriching themselves adding to the disadvantage of poor black people. Caucasians are insignificant in this country’s politics.

    • ST ST says:

      I meant to point out your bias. It’s not about colour. It’s about competence. A competent person can be from any race. This obsession with black and white the world over. SA has other races too. Why do you feel the need to call yourself a “black boy” anyway. Something is surely fishy…

  • J Brooks Spector says:

    James Madison, the man who was significantly responsible for the actual drafting of the US constitution famously said that if all men were angels, there would be no need for governments. as we know, now, all men are not such beings and constitutions and appropriate laws and institutions must be in place to restrain the people at the top. the challenge, now, is in figuring out how to rejigger current practice and rules to restrain the leaders without reducing the government to rubble or inertia.

  • Colin Braude says:

    A correction: What Zuma did was always “as part of the ANC collective”. Any attempts to scapegoat him as a rogue exception to the ANC moral highground is a deflection and disinformation.

    A serious flaw in our Constitution is having the president in the dual role of Leader of Government and Head of State. The former is a partisan role while the latter should be a non-contentious unifying one; it is difficult for one individual to fulfil both roles. This separation arose in the European monarchies and was inherited by the former colonies, with the monarch replaced by a governor-general. When SA became a republic, we had a president and prime minister, but the two roles were merged by the apartheid government.

    Much of Europe has this separation (e.g. Germany: president and chancellor, France & Italy: president and prime minister, Britain, Belgium, Holland, Spain and the Scandinavian countries: monarch and prime minister).

    A “Desmond Tutu” type president could unite the country like no party politician could. Maybe a respected former judge or even national sports-team captain?

    • Rodney Weidemann says:

      We need look no further than Thuli Madonsela….

      • Matthew Quinton says:

        I dunno hey…. Cyril also seemed squeeky and wonderful until he had power. Even the great Mizz Madonsela has made a couple of statements which reveal the same tribal undercurrent which restricts truly rational thought.

        No… the president of SA needs to be from the first people or a coloured person. We CANNOT have a colonist for president. We whites will always be seen as the colonists of SA. We need to be honest about the fact that the Bantu are likewise NOT any more South African than the whites. The greatest similarity which we are refuse to see is “tribe first and SA 2nd”. Apartheid proved that we whites would put our tribe first and BBEEE has proved the same of the Bantu… including Thuli. We need to hand the running of this country over to the ONLY true South Africans… the first people and the Afrikaans speaking coloured people, who exist only because of SA and who have ONLY SA to call their home.

        • Malcolm McManus says:

          I don’t think its possible for a leader in the ANC to have true power. Too many skeletons in the closet to spill over, or in Cyrils case the couch. But too be honest, the ANC could easily do lots worse than Cyril. We nearly had Dlamini Zuma as president. Imagine that.

        • Gerrie Pretorius says:

          Give them some power and see what happens .…

  • Jane Crankshaw says:

    Great article and food for thought….

  • George 007 says:

    When SA has MPs whom the people of their district elect and who are answerable to them, we will have a real representative democracy, right now, they are posturing to the party that put them in power, not the people. Just because everyone can vote does not mean SA has a real democracy.

    • Malcolm McManus says:

      People need a good education in order for us to have a strong democracy. Something South Africa sorely lacks. Without a good education, how can you possibly make informed decisions. I imagine that is exactly why the ANC perform so dismally at getting the majority adequately educated. Education should have been priority number 1 at the dawn of our democracy, and stayed a priority.

      • Jane Crankshaw says:

        I agree 100% with this statement – we also need to stop rewarding an escalating birthrate amongst single parents – it takes two people to make a baby… why should the taxpayer take on the absent fathers’ responsibilities? Its just not fair…in any world!

  • Rae Earl says:

    There should be some sort of recourse to overrule bad decisions and the damage these can do to SA. Ramaphosa appointed the hopelessly inept Bheki Cele as Police Minister and the SAPS is now a shadow of its former self. Prior to that, the ridiculous appointment of Riah Phiyega as Police Commissioner was sheer lunacy. And what about Zuma’s appointment of the 4-day wonder Des van Rooyen as finance minister under the guidance of the Gupta clan? This system is not good and, when serial ditherers like Ramaphsoa sit on their hands and support bad placements instead of firing or replacing them, the country suffers at large in matters of safety and economy.

  • T'Plana Hath says:

    That’s just monarchy with extra steps!

  • Bob Fraser says:

    Bob – March 25th 2024 at 09:47
    Do we have a democracy?
    The President has mostly done as he pleases as has his ministers and deputy ministers. This especially applied to Zuma and to a lesser extent the present incumbent.

  • Bob Fraser says:

    Bob March 25th at 10:04
    Everything written is correct and needs major changes now. The president has always done as he pleases often with no or very little consultation. It’s a case of to hell with everyone. This was especially so with Zuma and to a slightly lesser extent Ramaphosa. Time for change is now.

  • John Patson says:

    President needs to appoint a prime minister, essentially to take blame when things go wrong, like in France.
    Ministerial appointments signed by president but nominated by Prime Minister, except for foreign policy and army, which remain mainly presidential.
    Lets president preside over cabinet and prime minister executes.
    Also need to cut cabinet numbers, so PM can keep tight reign.
    Also means that there is a constitutional way out of having executive with parliamentary majority different to President’s party…

  • Johan Buys says:

    People deserve the governments they elect.

    If we vote for a government that abuses its powers it is not the fault of the powers/rules/regulations. We only have ourselves to blame.

  • Lawrence Sisitka says:

    Of course it is not just in SA that the president has such extreme powers. It has always struck me as completely ridiculous, in so-called democracies, that any one individual should wield so much power. But of course, they are just ‘so-called’, as no real democracy could tolerate it, or indeed would even contemplate it. So, yes, we could, and probably should look to reducing the powers of the president, as an interim measure, but what we really need is to go back to the drawing board and redraft our whole governance structure to one that negates the possibility of any single political party or individual assuming (seizing?) so much control. In other words formulate a governance structure which genuinely serves the people, and is not open to the appalling bluster and dreadful machinations of party politics. We know now that the system developed in the the 19th century in Europe has had its day. It might have been appropriate in its time, and was certainly better than the essentially feudal systems that preceded it, but it is now so open to corruption and abuse that it no longer functions. There is no space here to describe such a system, but it is not impossible. The main problem is how to move from where we are to where we should be – sound familiar?

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