We all know that former President Jacob Zuma was not a president with a well-developed respect for his solemn obligation to uphold and defend the Constitution. In many respects Zuma was a constitutional delinquent while in office.
The most infamous example of this lack of respect for his constitutional obligations was his failure to stop the use of state funds to renovate his private home, thus allowing himself to be unlawfully enriched as a result. Consequently, the state paid for renovations at his private home that had nothing to do with his security. (The state even paid for the construction of a swimming pool, which – in mini-Trump style – some of his defenders laughably tried to convince the public was a “fire pool”.)
Because of this constitutional delinquency the Constitutional Court held in the judgment of Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others that:
“The President’s failure to comply with the remedial action taken against him by the Public Protector is inconsistent with his obligations to uphold, defend and respect the Constitution as the supreme law of the Republic; to comply with the remedial action taken by the Public Protector; and the duty to assist and protect the office of the Public Protector to ensure its independence, impartiality, dignity and effectiveness.”
But a far odder example of former President Zuma’s constitutional delinquency has gone largely unnoticed. This is his failure to assent to and sign the Protection of State Information Bill into law.
Although the version of the Bill eventually passed by Parliament was not as draconian as the version first tabled, I continue to have grave doubts about the constitutionality of parts of the Bill. If brought into effect it might well insulate the intelligence service from even the limited scrutiny it is currently subjected to and may also provide powerful mechanisms to allow the state top hide corruption and maladministration. As I summed it up in May 2013: “New Improved Secrecy Bill: Still Bad, Still Unconstitutional”.
This means I have mixed feelings about reminding anyone that the secrecy bill was never signed and that this constitutes a fundamental constitutional dereliction of duty on the part of both the former and the current presidents. But because this power grab by the president could occur again in another setting, it is important to remind everyone of the principle involved, which is that the president may not ignore his or her constitutional obligations.
A South African president does not have the power to veto a Bill passed by Parliament and cannot in effect veto such a Bill by indefinitely failing to assent to and sign it. In terms of section 79 of the Constitution, the president is allowed, first, to refer a Bill (duly passed by Parliament) back to the National Assembly (NA) to reconsider any sections of the Bill if the president has reservations about the constitutionality of such sections. This President Zuma in fact did with the Secrecy Bill, after which Parliament tinkered with the Bill and passed it again. That was towards the end of 2013, almost five years ago.
Second, the president can also refer the sections he or she believes to be unconstitutional to the Constitutional Court for a decision if he or she is not satisfied with the response of the National Assembly. In this regard section 79(4) (read with section 237) of the Constitution explains what must happen next. Section 79(4) states that:
“If, after reconsideration, a Bill fully accommodates the President’s reservations, the President must assent to and sign the Bill; if not, the President must either (a) assent to and sign the Bill; or (b) refer it to the Constitutional Court for a decision on its constitutionality.”
As the wording makes clear, the president has no choice in the matter. If he or she does not refer the Bill to the Constitutional Court, the president must assent to and sign the Bill. In the USA, with its more robust system of checks and balances, the president has a right to veto a Bill whose content he or she fundamentally disapproves of. Such a veto kills off the Bill unless the veto is overridden by the Senate but only if the Senate passes the same Bill with a two thirds majority.
South African presidents do not have this power. They cannot veto a Bill because they do not like its content. They can only refer those parts of the Bill first to the National Assembly and then to the Constitutional Court, but only if they truly have reservations about the constitutionality of these sections.
As section 79(5) makes clear, if the Constitutional Court finds that the sections referred to it are constitutional, the president must assent to and sign the Bill. In Ex Parte The President of the Republic of South Africa, In Re: Constitutionality of the Liquor Bill, the Constitutional Court held that:
“It is moreover clear that the President is empowered to refer a matter to this Court in terms of section 79 only if his reservations concerning the constitutionality of the Bill are not fully accommodated by Parliament. If the President has no reservations concerning the constitutionality of the Bill, or if his reservations have been fully accommodated by Parliament, the referral would be incompetent. In the circumstances, the presidential power is limited under section 79(4)(b) to the power to refer a Bill to the Constitutional Court ‘for a decision on its constitutionality’ with respect to his reservations…. Section 79(5) obliges the President to sign the Bill only if this Court decides that the Bill ‘is constitutional’. If it withholds such a finding — whether because the legislation is unconstitutional as whole, or only in part — the President may not sign the Bill.”
Section 237 of the Constitution makes clear that the president cannot delay assenting to and signing a Bill for almost five years. The section reads as follows: “All constitutional obligations must be performed diligently and without delay.”
The president has a constitutional obligation either to refer a Bill already referred to the NA to the Constitutional Court, or to assent to and sign it. He or she has a duty to do so diligently and without delay. One could argue that the president has many tasks to fulfil and that he or she should be given a month or two to assent to and sign Bills passed by Parliament. But no one would argue that not assenting to and signing a Bill almost five years after it was passed comply with the duty to act diligently and without delay.
By not assenting to and signing the Secrecy Bill then President Zuma (and now President Ramaphosa) have arrogated to themselves powers they do not have. By doing so they are encroaching on the separation of powers as they are exercising a power (to decide on whether a Bill should be passed or not) they do not have, a power the Constitution bestows on Parliament.
This means that President Cyril Ramaphosa has now inherited this constitutionally delinquent action from his predecessor. This does not absolve him from acting. But neither does it mean that he is required to sign the Secrecy Bill. He is entitled in terms of section 79(4) of the Constitution to refer the various sections of the Bill that may be unconstitutional to the Constitutional Court for a final decision.
This referral to the Constitutional Court needed to have happened speedily and without delay (but it has not). For President Ramaphosa to become constitutionally compliant he either has to assent to and sign the Protection of State Information Bill (not ideal), or he needs to refer the sections which might be unconstitutional to the Constitutional Court for a final decision (obviously the better options).
What he is not permitted to do is to delay the matter any longer. DM