Opinionista Paul Hoffman 5 December 2019

Does the president have too much power? Yes (and no)

Willie Hofmeyr overstates the position when he says that the powers of appointment which the president has under the Constitution are unqualified. The rule of law is regarded as supreme, which means that anything done by the president has to be within the confines of the doctrine of legality and must serve a legitimate purpose of government.

Willie Hofmeyr, after ending 20 years of service in the National Prosecuting Authority (NPA), has, according to weekend media reports, come out strongly in favour of clipping the presidential wings by restricting his constitutional role. Hofmeyr complains of an over-concentration of power in the hands of the president, pointing out that all senior appointments in the NPA are the “unqualified” business of the president.

Hofmeyr is not the first to so complain. The former deputy chief justice, Dikgang Moseneke, has also raised the topic, saying back in 2014 that too much power vests in the presidency.

It should not be imagined, insofar as the NPA is concerned, that the South African Constitution is unique. In the US, the attorney-general, who has the role of chief prosecutor, is a member of the cabinet, a position not enjoyed (or perhaps endured) by our national director of public prosecutions (NDPP). While it is an established custom in the US that the prosecutorial decision-making is done independently, the fact remains that the attorney-general serves at the pleasure of the president who has the constitutional power to hire and fire all cabinet members at any time.

The Kenyan constitution, largely modelled on the South African example, has an attorney-general and a director of public prosecutions (DPP). The former is the “principal legal adviser of the government” while the latter exercises state powers of prosecution. Both are presidential nominees appointed by the president with the approval of the national assembly. The DPP “shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his powers or functions shall not be under the direction or control of any person or authority”.

This is similar to the position in South Africa where the Constitution stipulates that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. The position of attorney-general forms no part of South African law.

Hofmeyr overstates the position when he says that the powers of appointment which the president has under the Constitution are unqualified. The rule of law is regarded as supreme in our constitutional order, which means that anything done by the president in his official capacity has to be within the confines of the doctrine of legality and must serve a legitimate purpose of government. An irrational departure from these standards, by, for example, appointing a known mendacious witness as NDPP is liable to be set aside as invalid. The “dis-appointed” fate of Menzi Simelane is a case in point. The courts set aside his appointment as invalid following a pre-appointment adverse credibility finding against Simelane which was ignored or swept under the carpet. The then-president, Jacob Zuma, in appointing him, acted in a manner inconsistent with the rule of law and the Constitution, as a consequence of which the appointment was successfully impugned at the instance of the Democratic Alliance.

It is right to suggest, as Hofmeyr does in his affidavit to the Zondo Commission supporting reforms, that errors such as were made with the appointment of Simelane, the dis-appointment of Mxolisi Nxasana and the latter’s replacement with Shaun Abrahams, could be avoided if criteria for, and fetters on, the power of appointment is introduced into our constitutional order. There is less chance of introducing and appointing what Hofmeyr calls “bad apples” if an open and accountable selection process precedes senior appointments.

The notion of expanding the powers of the Judicial Service Commission and reconstituting it so as to put more societal expertise (retired judges, captains of industry and commerce, faith-based leaders and trade unionists as well as senior NGO players) and fewer politicians in place on it, has long been debated as a panacea to the problems arising from unsuitable appointments not only to the Bench but also in the NPA and other senior sections of the public administration. This new “Commission for Senior Appointments and Dis-appointments” could moderate the excesses of the Zuma and even Thabo Mbeki eras.

There can be no doubting that the protection of Jackie Selebi and the persecution of Vusi Pikoli by the Mbeki administration were part of the rot in the criminal justice administration. The rot spread exponentially when the Scorpions were urgently dissolved and were replaced by the ineffectual Hawks. The resolution to do so was taken at the same ANC conference in Polokwane at which Zuma was elected as president of the ANC; the resolution, with hindsight, paved the way for State Capture activities.

So bad have the Hawks become that they do not even feature in proposals for the reform of the criminal justice administration that are aimed at avoiding a repetition of the State Capture phenomenon that flourished during the Zuma era. Indeed, the Hawks became tools of State Capture when they were used to persecute Pravin Gordhan on trumped-up charges that were ignominiously dropped, but now enjoy an after-life of sorts at the instance of Zuma favourite Busisiwe Mkhwebane, our current public protector. More review litigation and interim interdicts preventing remedial action have resulted.

As matters stand, a party disaffected with a senior appointment or with the activities of a senior appointee has a long row to hoe with a review or other proceedings starting in the High Court, and often proceeding on appeal via the Supreme Court of Appeal to the Constitutional Court. This extended process occurred to reverse the decision not to prosecute Zuma himself (it took 10 years of Stalingrad strategy) and in other matters too. The difficulty is that it takes so long for the courts to address the matter with finality that a great deal of damage, both direct and collateral, can eventuate while court processes are pending.

This feature of the system does not have to be so: it is possible, by affording appropriate cases preference on the roll for hearing, to speed up court processes considerably without denying the parties the right to a process that is fair to them.

It remains to be seen what the Zondo Commission will make of the Hofmeyr submission to it. Coming as it does from a seasoned member of the NPA and a former ANC member of Parliament, it cannot be ignored.

If the mischief that needs addressing is the propensity for corruption in high places to go unpunished, then an elegant solution has long been proposed by Accountability Now: establish a new Chapter Nine Integrity Commission – Ch9IC – to investigate and prosecute grand corruption, State Capture and all manifestations of kleptocracy. Carefully selected specialised staff who are properly trained, independent in their operations and their structure who have proper resourcing to deal exclusively with serious corruption will prevail if they have the one characteristic the Scorpions (closed down for being too efficient) lacked – security of tenure of office. The spectre of political influence and interference is the bane of the life of any anti-corruption body worth its salt.

By establishing the Ch9IC, the government will signal its intention to get serious about ending corruption with impunity in SA. It cannot happen too soon. DM

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