Rule of law gives Ramaphosa the power to right wrongs of the past
The president has an opportunity to staff his cabinet with honest and upstanding members as demanded by the constitution
One of the first tasks that faces the victorious alliance in the wake of the May 8 general elections is the swearing in of the members of a slimmed down cabinet chosen by the state president (not party president) in terms of the powers invested in him by the constitution.
It is not the function of the ANC at Nasrec, or even in Luthuli House, to make these appointments. The wording of section 91(2) of the constitution is perfectly clear: “The president appoints the deputy president and ministers, assigns their powers and functions, and may dismiss them.”
Bar two, all members of the cabinet have to be members of the sixth parliament. Word on the street is that they will be sworn in on May 27, shortly after the ceremony at Loftus Versfeld, at which the president himself will be sworn in.
Members of the cabinet are accountable, collectively and individually, to parliament for the exercise of their powers and the performance of their functions. They must act in accordance with the constitution and provide parliament with full and regular reports concerning the matters under their control. The accountability and responsibilities of the cabinet, as detailed above, all take place within the framework of the rule of law, which our constitution regards as supreme.
Legality and rationality
Now that SA has a president who is a trained lawyer and “founding father” of the new constitutional order — not a hedonistic and corrupt despot like his predecessor — it is to be expected that the cabinet will be chosen by him with due regard to the tenets of legality and rationality. It is a fundamental part of the rule of law that decision-making in the government takes place according to the tenets of legality and rationality.
A governance decision that does not serve a legitimate purpose of the government is invalid and falls to be set aside at the instance of anyone who is not satisfied that it is consistent with the constitution. The courts have been given the constitutional power to determine whether any conduct is consistent with the constitution. Conduct — such as the decision to appoint a cabinet member — can be struck down by the courts if it is not properly aligned to the rule of law.
The choices available to the current president are limited. Apart from the two outsiders, he has 400 members of the National Assembly available, from among whom he must select his cabinet. It is likely, but not necessarily imperative, that he will make his selection out of the 230 members of the ANC who will have been sworn in as MPs. He does not have to choose DD Mabuza as his deputy again. There is speculation in the media that he will advance non-sexism, or at least gender balance, by appointing his Nasrec opponent, Nkosazana Dlamini-Zuma, as his deputy.
But what of the balance of his cabinet: how will he go about the ticklish task at hand? Unlike Roman emperor Caligula, who is famous for appointing his horse as consul, the president’s hands are tied by the tenets of the rule of law and the other limitations set in the constitution.
He would do well to insist that those among the 230 ANC members in the National Assembly who have been excoriated by the courts or mentioned in evidence before the various commissions of inquiry currently sitting — and there are a good few of them — should be excluded from consideration until the dark clouds hanging over them have been cleared.
Indeed, it would be illegal and irrational to appoint known suspects in the state capture and corruption derby that was the Zuma administration as members of the new cabinet. Not only will this not amount to good practice, it could lead to questions in parliament that will be difficult to answer and to litigation impugning the appointment of those suspected of wrongdoing.
Threat of litigation
Opposition parties, emboldened by their increased share of the electoral pie, may see fit to sue in respect of questionable appointments. Civil society activists and pressure groups are also likely to want to nip any continuation of corrupt appointments in the bud. Litigation from that quarter is also possible if the president does not take due cognisance of the rule of law in the process of appointing his cabinet.
Ramaphosa will do well to take a leaf out of the book of former president Thabo Mbeki. It will be recalled that he fired Jacob Zuma as his deputy after the high court found Schabir Shaik guilty of corrupting Zuma. There was no finding against Zuma. He simply found himself under a cloud of suspicion of wrongdoing. He was not even an accused in the criminal trial.
However, there was credible evidence that created a reasonable apprehension that he had been involved in a corrupt relationship, whether with corrupt intentions of his own or not. That was enough for Mbeki; he did not hesitate to dismiss Zuma as deputy president of the country under the powers afforded to him by section 91(2) of the constitution. By so doing, Mbeki set a good governance precedent that Ramaphosa will do well to follow.
The fact that this may arrest the ambitions of a few of the 230 members of the ANC caucus should not be a reason to desist from insisting that the Ramaphosa nominees for cabinet are as above suspicion as Caesar’s wife. The last thing the new president wants is to be bogged down in litigation and disputes about his choice of cabinet members. It is in any event high time that the ministers of justice and police are replaced.
The minister of justice is responsible for signing off on the decapitation of the National Prosecuting Authority (NPA). Mxolisi Nxasana was illegally relieved of his post as national director of public prosecutions. This was one of the most wanton acts of state capture and so far it has gone unpunished because of the capture of the criminal justice administration by those loyal to Zuma. A criminal complaint against the minister, Michael Masutha, was laid as long ago as July 2015. The completed docket is gathering dust on the desk of a captured member of the NPA. Masutha is not the stuff of which a credible cabinet is made.
Similarly, current police minister Bheki Cele was found wanting by the public protector in her Against The Rules and Against The Rules Too reports, for leasing premises for police headquarters at three times the going rate. In addition, the Moloi inquiry into his fitness for office as commissioner of police not only found him guilty of dishonesty and incompetence, it also recommended that the appropriate authorities look into possibly corrupt activities in relation to the leases. This has never been done, due one imagines to the capture of the criminal justice administration by the Zuma miscreants.
Zuma was obliged to dismiss Cele as police commissioner, but dishonesty is incurable and he soon appointed him as a deputy minister. It would appear that the decision to dismiss Cele was recently, years after the event, set aside on an unopposed basis in somewhat mysterious circumstances.
The SA Police Service (SAPS) was militarised on Cele’s watch as commissioner. The notion of a service for the people was supplanted by the creation of a “force” to combat crime with greater forcefulness. This development was viewed askance in the National Development Plan (NDP), which recommended the demilitarisation of the SAPS as a “short-term objective”. This objective was not achieved in time to prevent the Marikana massacre. The Farlam commission into that policing debacle recommended the urgent implementation of the NDP as regards the demilitarisation of the police. The recommendation was accepted by the government but has not been implemented.
Efforts to get the parliamentary police committee to hold the executive to account proved fruitless. As it is up to Cele as current police minister to produce the proclamation demilitarising the police, neither the NDP nor the Farlam commission recommendations mentioned above stand a snowball’s hope in hell of being implemented while he graces the cabinet.
It would also be prudent for the president to avoid appointing those criticised in judgments for their lack of probity and integrity, as well as those mentioned in credible evidence before commissions when that evidence creates a reasonable apprehension of impropriety on the part of those named. By following the recipe suggested above, the first truly Ramaphosa cabinet will be a great improvement on those appointed by his predecessor.
• Hoffman SC is a director of Accountability Now.