Questions are being increasingly asked about whether there are any aspects of South Africa’s model constitution, adopted in 1996, that ought to be amended to strengthen democracy overall and boost fundamental human rights, freedoms and values.
Most of the criticisms of the constitution over the past few years have overwhelmingly been from those with clearly malicious intent, who want to water-down the democratic rights, freedoms and values enshrined in it.
Of course, our democratic constitution is our “Holy Grail” which should not be changed for the sake of it.
The constitution provides us with a fair framework and set of rules and values – which bind everyone and through which we can solve our difficult problems.
However, after 20 years of democracy, it is valid to ask if there are aspects of it that genuinely undermine the effectiveness of South Africa’s democracy.
I would say there are. And clearly, one of the most obvious weaknesses is that it has concentrated too much power in the executive offices, chiefly, in the office of the president, in relation to parliament and the democratic oversight of institutions and ordinary citizens.
This excessive power in the office of the president is now undermining the workings of the democracy itself.
Deputy Chief Justice Dikgang Moseneke has brilliantly pointed out that a fundamental weakness of the constitution is the way in which it allocates “public power”. This is so skewed that it actually undermines South Africa’s “democratic project” itself.
Chapter 5 of the constitution sets out most of the executive powers, although a number of other laws also reinforce executive power.
Given our experience of the past 20 years, it is crucial that we amend the constitution to reduce the powers of the president, especially in relation to its sole, unconstrained and sweeping powers of the appointment of holders of key democratic institutions, agencies and offices.
Even in the cases where the president makes appointments in consultation with parliament and other organs of the state, in practice, presidential prerogative has overwhelmingly held sway.
The constitution gives the president the power to appoint four members of the Judicial Commission, which appoints judges.
The president also appoints the Chief and Deputy Chief Justice, and the judge presidents of other courts.
The president also appoints the heads of key public oversight institutions, from the Public Protector and Auditor-General to the National Director of Public Prosecutions.
And the president appoints the members of Chapter 9 institutions, tribunals and commissions of inquiry. The president appoints the commissioners of the Independent Electoral Commission (IEC), the governor of the Reserve Bank and members of the Finance and Fiscal Commission.
The president further appoints boards of state-owned and public entities such as the South African Broadcasting Corporation (SABC), South African Revenue Service (SARS) and all ambassadors.
Moseneke recalls that during the formulation of the constitution, the drafters were happy, in cases of a dispute between different arms of the state over who should appoint a public functionary, to defer to the then occupant of the presidency, Nelson Mandela.
“He (Mandela), after all, will do the right thing,” says Moseneke recalling the collective view of the constitutional negotiators at the time.
Certainly, concentrating so much power in the office of the president must rank as one of the rarest, yet also gravest shortcomings of the very capable drafters of the South African constitution. Expecting that current and future presidents would “do the right thing” solely on the basis of their past struggle credentials, or their pious public statements, was certainly naivety at its most extreme.
The fact is, almost every failure of African liberation and independence movements-turned governments and their leaders, have been mostly because members, activists and supporters of these movements naively expected that their current and future leaders would “do the right thing” because of their past struggle credentials and continuing pro-democracy and anti-racism public rhetoric.
And almost every African country since independence from colonialism has been bitterly disappointed on this score.
For the past few years in South Africa, appointments to boards, the heads and commissions of many SOEs, public agencies and oversight organisations, have often not been based on the merit, competency and the ability of a candidate, but frequently on pliability, uncritical loyalty and toadying.
Such hand-picked appointments have undermined the integrity of the whole supposedly democratic appointment process, turning it into a circus.
Moseneke has rightly pointed out that the courts over the past few years had to frequently adjudicate challenges against the “rationality of several appointments made by the President”.
For the president to appoint key public functionaries on the basis of self-interest, rather than in the widest possible interests of the country, also wastes the extraordinary wealth of talent across South Africa, available to conscientiously do public duty.
Given the complexity of South Africa’s problems, the great needs and scarcity of available resources, the country cannot afford to waste talent in the appalling ways we have seen over the past few years.
Talented, hardworking and independent-thinking individuals can think their way through complex problems, whereas pliable, yes-men and women and incompetent ones aggravate challenges even more.
Moseneke, himself, is case in point. He is a talented, patriotic and democratic jurist who has been overlooked for the Chief Justice position just because of his criticisms of the president and the ANC leadership.
Meanwhile the appointment of handpicked cadres, based, not on ability, honesty and fairness, but on loyalty to party and leader, has undermined the effectiveness, credibility and public trust in these institutions.
In fact, this has been one of the main reasons why most state-owned and public enterprises, agencies and institutions, from the SABC, to the Post Office and Eskom are falling apart.
This has further undermined the consolidation, quality and sustainability of South Africa’s democracy itself. The powers assigned to the president in the constitution have effectively meant that the country has an executive presidency, but a president who is not elected in his or her own right by the broader public.
South African citizens vote for the governing party, and the small party leadership elects the leader, as president.
Given the political, social and cultural diversity of South Africa – and the constitution’s attempt to devolve power, spread it equitably and through cooperative government, an executive presidency with sweeping powers, is simply not appropriate.
Moseneke points to the challenge: “The ultimate question is how best we may shield appointments of public functionaries to institutions that gird our democracy, from the personal preferences and vagary of the appointing authority (the presidency)”.
Clearly the constitution needs to be amended to reduce the powers of the president to make appointments. This of course, is not going to be easy.
How best to appoint public functionaries in a fair, merit-based and transparent way manner is not simple either.
Possibly, there are two ways to do so: either through an open parliamentary process on the one hand, or a public process over which the Chief Justice presides – with in both cases, the president not having the power to overturn such decisions.
William Gumede is chairperson of the Democracy Works Foundation and author of “Restless Nation: Making Sense of Troubled Times”