It is a little-known fact among non-lawyers that the terms “separation of powers” and “checks and balances” are not to be found in the South African Constitution. However, the Constitutional Court, in a long line of cases, has held that the separation of powers doctrine (and the concomitant system of checks and balances) forms an integral part of the South African constitutional design.
The Constitution creates three branches of government (some argue it may create a fourth branch consisting of the Chapter 9 institutions), allocates specific powers to each branch. This allows each branch to check the exercise of power by the other branches in order to ensure that no branch gains too much power. In theory this protects citizens from the abuse of power that inevitably results from the concentration of too much power in one institution or branch of government.
In modern democracies like South Africa (in which governance decisions have increasingly become complex and often technical in nature), the executive is by far the most dangerous branch of government. If the other branches do not vigilantly check the exercise of executive power, the executive will threaten the health of the democracy as well as the rights and well-being of every person who lives in South Africa.
The executive has direct operational control over the military and the other potentially repressive state institutions such as the police force and the secretive state security services, with its network of spies and its ability to eavesdrop on the conversations of any citizen.
It also controls an army of civil servants who (in terms of Chapter 10 of the Constitution) must execute the lawful policies of the government of the day but must remain politically impartial. However, many civil servants find this impossible to do because of an increasing conflation of the governing party and the state and because of the pressure to show loyalty to (and entertain the whims of) the head of the executive.
The problem of abuse of power by the executive is heightened in the South African system, in which citizens do not directly elect the executive. Unlike the members of the NA (the only national institution democratically elected in direct elections by voters), the executive is formed at the whim of the president who, in turn, is indirectly elected (some will say, appointed) by the members of the NA.
In reality, at present the president is elected by the just over 4,000 delegates who attend the ANC national elective conference every five years. However, to what extent these delegates represent the choices of the rank and file members of the party is unclear, because branches can be bought or otherwise manipulated to support one or the other candidate at the elective conference.
In order to safeguard our democracy against the dangerous and overweening power of the president and other members of his or her executive, the Constitution subjects the executive to the control of the legislature – in particular the democratically elected NA – as well as to the Constitution, enforced by an independent judiciary.
The president is not only elected by the NA, but can also be fired by it. The NA can also fire the Cabinet. The NA can fire the president and/or the Cabinet at any time for any reason it sees fit.
Section 42(5) of the Constitution empowers the president to summons Parliament to an extraordinary sitting at any time to conduct special business. When summoned, Parliament cannot refuse to gather, but in theory it retains the power vis-à-vis the president and his or her executive because it has the final say on any biding decision it is required to take.
Moreover, the president (or any other member of the executive or of the security apparatus) is not authorised to prescribe to Parliament how it should operate when it is called to such a special sitting or what decisions it should take.
This is made clear by section 45 of the Constitution, which states that the NA and the NCOP “must establish a joint rules committee to make rules and orders concerning the joint business of the Assembly and Council”. The president or members of the executive (include the police, military or state security) cannot rewrite these rules or circumvent them.
Section 57 and 70 of the Constitution also confirm that when the NA or the NCOP sit separately they are empowered to determine and control their internal arrangements, proceedings and procedures.
Section 56 and 69 further provides the NA and the NCOP with far reaching powers over the executive, stating that the NA or NCOP or any of their committees may:
This means the NA or NCOP can at any time summons the president (or any other person) to appear before it. If the president (or any other person) refuses to do so, the NA or NCOP can force them to appear by summoning him or her to do so. If the president (or any other person) refuses to appear when summonsed he or she would be in contempt of Parliament. In terms of the rules of Parliament the Speaker or Chairperson of the NCOP need to grant permission before a person is summoned.
(Of course, given the fact that the ANC Chairperson and the president meet every Monday at Luthuli House and given that her loyalty to the party and its leader will – in the absence of strong principles – trump loyalty to the rules of Parliament, it is not likely that the Speaker will ever grant such permission to summon the president to the NA.)
As we all know (because the rule was flouted last year) NA rule 111 also requires the president to answer questions in the NA at least four times every year. The question sessions are supposed to be scheduled in terms of the Parliamentary programme. If the Speaker fails to schedule such sessions (as she did last year) she is flouting the rules of the institution that she purportedly heads.
Because much of the de facto power resides with the president and his or her executive (as they control the potentially all-powerful and repressive state institutions as well as the public administration), Parliament can only perform its functions, and hold its own against the potentially repressive actions of the executive, if it vigilantly protects Parliament from interference and protects the sanctity of the institution.
When Speaker protects Parliament in this manner, she is protecting democracy itself. She is protecting the democratic space and the right of voters to be represented in a robust and vigilant manner by the MPs representing the political parties for whom voters cast their ballots. If she fails to protect the sanctity of Parliament against the overbearing power of the executive, she is unlawfully surrendering our democratic space to the whims of unelected bureaucrats, shadowy securocrats or politicians who serve at the pleasure of the president, not at the pleasure of the voters.
It is to that end that the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act of 2004 specifically states in Section 3 that:
“The Speaker and the Chairperson [of the NCOP], subject to this Act, the standing rules and resolutions of the Houses, exercise joint control and authority over the precincts on behalf of Parliament.”
The Speaker and the Chairperson cannot legally abdicate this control over Parliament to anyone. It cannot delegate their powers to the Minister of State Security, any of its spies, the South African Police Service or to any other government department. This fact is further underscored by section 4(1) of the Act, which states that:
“Members of the security services may (a) enter upon, or remain in, the precincts for the purpose of performing any policing function; or (b) perform any policing function in the precincts, only with the permission and under the authority of the Speaker or the Chairperson.”
When Baleka Mbete therefore suggested to journalists on Tuesday that she was not in control of the security arrangements at Parliament during SONA, she was admitting that she (along with the Chairperson of the NCOP) had failed to comply with section 3 and 4(1) of the Act.
Mbete said at the press conference that during a briefing on security plans for the state-of-the-nation address, “we became aware that there was a plan for certain equipment to be deployed”. But she admitted that:
“It is an item we received as a report along with many other reports, without necessarily knowing the detail, in particular [the] effects, because it was an item dealing with what measures had to be taken for the protection, in particular, of the head of state and the deputy president.”
This means that if the Speaker was being truthful, she was admitting that she was unaware of the detail of the actions of the potentially repressive state institutions in the Parliament when she was legally bound to give permission for their actions and ensure control over these actions. She had abdicated her legal responsibility, and had thus forsaken her Constitutional duty to protect the legislature against encroachment by the executive branch of government.
Her political loyalty to the head of the executive branch of government thus trumped her loyalty to the Constitution and her duty to uphold the law. It made her position (and that of the Chairperson of the NCOP) untenable.
Both have a duty to resign forthwith. That they won’t do so and won’t be forced to do so by the majority party, tells its own story. DM
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