27 March 2024

Co-written with constitutional scholar Dan Mafora. Forthcoming in the Daily Maverick.

In his March 25th piece for the Daily Maverick, Stephen Grootes makes the case for reducing the powers of the South African president, particularly the president’s powers of appointment. He points to comments made recently by Trevor Manuel at The Gathering, who similarly takes issue with the president’s authority to make appointments to key public offices. The former minister even makes the suggestion that the president’s current powers may have been an oversight and ought to be revisited. He asks whether such powers are “consonant with the spirit of our Constitution?” He neglects the well-documented history of the painstaking efforts that went into writing this globally admired document. Its ingenuity does not stop with the Bill of Rights; it extends to the less-explored sections dealing with executive powers, which are read all too briefly and dismissively – a tendency encouraged by South African political scientists and constitutional lawyers for whom executive power is a bogeyman; the harbinger of tyranny. Manuel also neglects his own party’s history – the ANC long contemplated and debated what kind of constitution the country should have after liberation. Two recent bestsellers – Odendaal’s Dear Comrade President and Mafora’s Capture in the Court – offer just such an overview.

Both men seem to be in agreement, then, that these powers should be curtailed, with Grootes, in his article, even suggesting that “There are measures citizens can take to try to weaken the powers of the President.” (Although he does not point to any concrete ones). His article plays out scenarios which may lead to such a “weakened” presidency, including the seeming inevitability of coalition governments. Here’s one: “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.”

Of course, the article assumes that there is a desire for a “weak” president in South Africa. Such an assumption would be based on findings contrary to every bit of evidence regarding the way South Africans engage with the state and the expectations they have towards it when they vote. South Africans principally vote because they want government to make a difference to their socio-economic conditions. That is hard to do when the leader of the country would have their hands tied.

At its core, the Grootes-Manuel argument misunderstands or disregards the democratic process: the voting population elects a parliament, which in turn nominates and elects a president. This is not the ideal system of a directly elected president (which Grootes punts and with which we actually agree). And, yes, South Africans may not directly elect their own leader, but they always know who is the presidential ‘candidate’ of their party of choice – his face is on the ballot paper. Some, though not all, also peruse through their party’s manifestos, and thus have a sense of what it is they are picking. The awkward and untimely transitions (from Mbeki to Zuma, and Zuma to Ramaphosa), which Grootes cites, have taken place towards the end of the presidents’ tenures and are thus are no good justification for as broad-sweeping a change as he suggests. (Grootes must also be aware that the leaders of the US and the UK, which he holds up as models, are not any more directly elected than South Africa’s presidents. Otherwise Hillary Clinton would have won in 2016, not Donald Trump.)

With every major problem facing the country, there is an expectation by the public that government, led by the president, will take measures to remedy it. Grootes acknowledges this, but does not take a system-wide view to realise that a president weakened in making appointments, in turn weakens the population’s ability to hold the president, or their party, to account. The reason we are even contemplating coalitions now is because the population, though it does not directly elect its president and parliamentarians, has seen through the failings of the current dominant party and may well punish them at the polls on the 29th of May. This route — more cumbersome and demanding — is what the Constitution requires.

Curtailing the president’s powers would be the constitutional equivalent of cutting off our collective nose to spite our national face. True, as the article points out, there has been state capture and corruption with a certain former president and/or his appointees being the prime suspects. However, the delegation of the process of appointment to an imaginary unaccountable, nameless and faceless blob carries its own risks, which may be far worse than those brought by the present. We can think of two, but even they should suffice. Firstly, the process of delegated appointments of key figures is likely to result in its own temptations for shady backroom dealing no matter who does it. And the point which the article seems to neglect is this: who will appoint the appointers? It would likely still ultimately point to the president, or someone who ultimately answers to the president. Would he/she then not influence the process? Secondly, the appointments would likely result in a situation where the president would always have the indirectly appointed figures for a scapegoat when his/her administration fails to deliver. What we currently have is as good as it gets. It may carry risks, but the alternatives are far worse.

In these pages, Ndzendze has made the argument for a broader interpretation of Chapter 5 of our Constitution by giving presidents and their deputies their own ministerial portfolios in order to ensure transparency and accountability. Such a scheme, requiring no change to the Constitution, would ensure that the public more directly sees through the head of their national government and makes a determination as to whether they are an effective president or not. It also would not give them any powers that they are not already in possession of. A president already carries more power than a minister. Should we indeed find ourselves in a situation where parties that have not been in power at a national level find themselves with the presidency, can have a new president would take a ‘crash course’ in government by being simultaneously president and minister of a chosen portfolio. Elsewhere, it has been has shown that this has led to very good results in other countries.

Imposing additional (and unnecessary) procedural hurdles on the exercise of executive power, which is meant to be the most agile of the three kinds of constitutional powers, would likely worsen governance and not improve it. So, Messers Grootes and Manuel, learn to love all of our Constitution, including the president’s powers.

Ndzendze and Mafora write in their personal capacities.