Nkandla excesses expose the glaring gap in founding law

Nkandla excesses expose the glaring gap in founding law

The ideologically ramshackle coalition that gathered as the “People’s Consultative Assembly” last weekend at various centres showcased a veritable fruit salad of ideas and personalities.

Ranging from a retired judge to an avant-garde film director and a supporting cast of politicians, they were united by one galvanising idea: removing Jacob Zuma from the presidency.

A petri dish of strategies was concocted by the assembly on how to achieve this goal and how to perfect the system afterwards. This was intended to ensure, said former Constitutional Court Justice Zak Yacoob, that South Africa never again has an elected president who will “steal so much and lie so much”.

Wistfully, Yacoob noted that he was there “when we made the constitution” and having a liar and a thief at the helm of the state was never the imagined outcome.

I, too, was present at the creation of South Africa’s brave new constitutional experiment, which began amid raucous disagreement in December 1991 in Kempton Park and concluded with broad agreement in the Constitutional Assembly in Parliament in May 1996.

Two other figures also present – at the time luminaries in the now-vanquished PAC – were Patricia de Lille and Dikgang Moseneke.

It is striking that both of them – one now mayor of Cape Town and the other the deputy chief justice – repeat a single reflection from the era of constitution-making of two decades ago. It happens to explain much of the national trauma afflicting the country and rocking its constitutional foundations.

De Lille, in an interview with The Economist in December last year, observed: “When we wrote the constitution we had in mind figures like Mandela.”

In a speech at Unisa in November 2014, Moseneke elaborated on this point with precision. Describing the huge powers the constitution vests in the person and office of the president, the deputy chief justice offered this thought: “The anecdotal account is that at the time of the formulation of the final constitution, whenever there was a dispute about who should appoint a public functionary, the negotiating parties were happy to leave the power in the incumbent, President Nelson Mandela. He, after all, will do the right thing.”

And Mandela mostly did so. Of course the views of the PAC of the time were often as influential as a sneeze in a thunderstorm – a few exceptions aside – as were those of the small Democratic Party, which I led at the time of the finalisation of the constitution.

This was not because of the quality of ideas, but the balance of power back then. In the words of ANC constitutional chief Cyril Ramaphosa, the “sufficient consensus” requirement for Codesa – the Convention for a Democratic South Africa – was achieved once the ANC and the National Party agreed on an item. Thereafter, in his earthy phrase, “everyone else can get stuffed”.

If you ever get to write a constitution, make sure that you have in mind what will happen if your worst enemy, not your best friend, gets into power

The liberal view on limiting presidential power, with thorough checks and balances, found little favour. Either the romantic notion of the “Good Tsar” to instruct constitutional good behaviour found life force in the outsize personality of Mandela or, more probably, the NP had had 40 years of leadership-worship which it couldn’t shake off and the coming ANC power had no desire to restrict it.

During those negotiations a voice kept echoing in the small corner of the Democratic Party delegation. It had been expressed, to me at least, during my constitutional law lectures at the University of the Witwatersrand in 1980. Professor Johan van der Vyver intoned: “If you ever get to write a constitution, make sure that you have in mind what will happen if your worst enemy, not your best friend, gets into power.”

Given that in the ’80s there was a prospect that a white rightist extremist force could ascend to power – and Van der Vyver himself was a liberal refugee from the conservative extremities of the Potchefstroom University for Christian Higher Education – this was probably what he warned against.

But in his 2014 speech, Moseneke could reflect on more recent times and constitutional threats. He offered a warning, presciently, long before the predations of Nkandla and much else besides laid it bare.

He said it was time to revisit “the dispersal of public power” and how it is allocated. He warned that “the vast powers of appointment” allocated to the president and the national executive, which the president appoints, and can dismiss, is deeply problematic.

And dangerous.

He cautioned, further, on the danger of not shielding appointments of vital officials from the “personal preferences and vagary of the appointing authority”.

Since a constitution that had a Mandela in its view and landed up with a Zuma is now being stress-tested almost daily, Moseneke had good reason to suggest a revisit of these powers.

As he put it: “This uncanny concentration of power is a matter which, going forward, we may ignore, but only at our peril.”

Zuma is unfettered in most of his appointing powers, held back by nothing more effective than a robotic majority, ever prepared to do his bidding, in parliament.

Just compare the position of the most powerful politician in the world. The president of the US, Barack Obama, cannot get a single nominee for the vacancy on the US Supreme Court approved, let alone heard, in the Senate – because the opposition Republicans are blocking the process.

Doubtless, though, Zuma must be disappointed about how some of his most important appointments have played out.

He must bitterly regret appointing one-time ANC member but now his primary nemesis, Thuli Madonsela as public protector. But watch who he appoints – if he is still around – as her successor in a few months.

Houdini of Nkandla trapped in Gwede’s ANC box
Ironically, the man who warned of the president’s unfettered powers and who had both the merit and the seniority to be made chief justice, Moseneke, was passed over for that appointment. Instead, doubtless hoping to have a more amenable top jurist, Zuma picked the relatively junior and obscure Mogoeng Mogoeng for the post.

And with Mogoeng’s lacerating judgment now imperilling the Zuma presidency, doubtless Zuma agrees with the regret expressed by former justice minister Oswald Pirow, who lamented in the ’30s: “The problem with political appointees to the bench is that six months after their appointment, they assume they were appointed on merit!”

Whether Zuma goes or stays, the deep hole at the heart of our constitution is the enormous power it vests in one person and the often flimsy checks on the wholesale abuse in this process by that office.

The People’s Consultative Assembly called for all manner of reforms – from abolishing proportional representation to doing away with a system based on “neo-apartheid”, “imperialism” and “colonialism”.

But, perhaps, the overconcentration of power in the person and office of the president is the greatest and clearest danger – now and in the period after Zuma goes.

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