LAWSON NAIDOO: Selection processes for state jobs are mere popularity contests

Since assuming office as president just more than four years ago Cyril Ramaphosa has sought to craft new appointment processes for the commissioner of the SA Revenue Service (Sars) in 2018, the national director of public prosecutions in 2019, and the chief justice in 2021. Each has involved an independent panel to either advise or interview candidates for appointment.

While Ramaphosa has the authority under the constitution to appoint the police commissioner, he is now adopting the approach recommended in the National Development Plan, which says, “The national commissioner of police and deputies should be appointed by the president on a competitive basis. A selection panel established by the president should select and interview candidates for these posts against objective criteria.”

Some have criticised Ramaphosa for “outsourcing” his constitutional responsibilities, but he has stuck to his strategy to ensure that these positions attract the best talent in the country through open, competitive and transparent processes. However, absent from each of these processes is the development of any objective criteria for these important positions in our constitutional democracy, a shortcoming that may undermine the president’s noble intentions.

The country is also engaged in a search for a member of the Electoral Commission (IEC), a process that has attracted far less media attention. The seven-year term of commission chair Glen Mashinini is coming to an end, and though he is eligible for reappointment for a second term he must reapply. Appointments to the IEC follow a unique process for Chapter 9 institutions.

While the appointments of heads or commissioners of other such bodies are conducted solely by the National Assembly, IEC commissioners are screened and interviewed by a panel headed by the chief justice, which must include representatives from other Chapter 9 institutions such as the public protector, the Commission on Gender Equality, and the SA Human Rights Commission. The panel submits a list of eight names to the National Assembly, which then recommends a candidate for appointment by the president.

The president has no discretion in appointing heads of Chapter 9 bodies — he must appoint those recommended by the National Assembly. But even these parliamentary processes, which involve public calls for nominations, shortlisting, interviews conducted in public and so on, have produced mixed results. It is fair to say the appointments of the auditor-general have drawn little controversy over the years. Not so for the other state institutions supporting our constitutional democracy.

Much of the weaknesses or failures of these parliamentary processes hinge on the lack of objective criteria when evaluating candidates. Regrettably, neither the constitution nor the underlying legislation fleshes out the requirements for the jobs beyond mere generalities such as being a fit and proper person, and an SA citizen with the appropriate qualifications. This leaves ample room to manoeuvre for political horse-trading by parties represented in the National Assembly, especially when shortlisting candidates for interview. Others have highlighted that it is more onerous to become a constable in the SA Police Service (SAPS) than it is to ascend to national commissioner.

While the list of nominees is usually made public — the chief justice has thus far steadfastly refused to divulge the names of nominees for the IEC — there is no clarity on what mechanism is used to shortlist candidates. In a normal human resource recruitment process there would be criteria, key performance areas all weighted to the needs of the job at a particular time, against which each candidate is measured. Parliament does not bother with such niceties when they can simply resort to a popularity contest.

In its report after the appointment of the current public protector in 2016, the ad hoc committee, heeding concerns raised by civil society organisations, recommended that the “National Assembly look into establishing guidelines for committees of the assembly when dealing with appointments of public office-bearers to independent constitutional institutions”. You will not be surprised to read that the National Assembly has not taken heed of this advice.

No-one seems to mind that elaborate parliamentary processes do not yield the best candidates. It’s a classic case of form over substance — the illusion of openness and transparency blinds us to the lack of any intellectual rigour in the process. It’s a recipe for mediocrity, where the candidate who ruffles fewest feathers or best plays to the populist gallery emerges victorious. Bluster, deceit and political point-scoring are a convenient substitute for reasoned questioning of a candidate’s credentials.

These confrontational, demeaning and often insulting public processes — where the integrity and intellectual heft of the candidate far outweigh that of their interlocutors — result in the best candidates not putting themselves forward. We saw this most noticeably in nominations for the superior courts to the Judicial Service Commission (JSC). The repugnant behaviour of some members of the JSC led to the Council for the Advancement of the SA Constitution (Casac) challenging the interviews conducted in April 2021 in court, and the JSC agreeing to rerun those interviews.

Some may argue that it was a pyrrhic victory as the same candidates were recommended after the second set of interviews, but an important line in the sand was drawn. That the JSC regressed in its recent bout of interviews for the chief justice should not detract from this. The JSC has now publicly recognised that it needs to put in place criteria for the evaluation of candidates who appear before it, as well as a code of conduct for its members. That is less likely to have happened without Casac’s legal challenge and consistent advocacy by civil society organisations.

The state capture commission of inquiry has highlighted how easy it was for a president to manipulate appointments to key institutions of governance to undermine the capacity of the state — think of Shaun Abrahams at the National Prosecuting Authority, Tom Moyane at the SA Revenue Service, Riah Phiyega and others at the SAPS, including Berning Ntlemeza at the Hawks.

Ramaphosa’s goal of rebuilding state capacity, stuttering as it is, is likely to be spurred on by the recommendations of chief justice-designate Raymond Zondo’s final state capture reports. He now needs to focus on entrenching the positive start he has made.

In addition to setting clear and objective criteria for appointments to key institutions of governance by the president, parliament and the JSC, the mechanisms for the establishment of independent panels to play a key role in some of these appointments need to be entrenched through the necessary constitutional and legislative amendments.

It has been a positive if faltering start, and it must not be abandoned.  

• Naidoo is Casac executive secretary.