SHIRLEY DE VILLIERS: The curious case of cabinet and the national command council
The government hasn’t felt the need to explain itself to the nation – not about the seemingly arbitrary and paternalistic rules it dreams up, and not about a council that, on a very practical level, seems to be running SA
Nature abhors a vacuum. Plato’s insight seems particularly prescient in SA today, where, in the absence of clarity from government, the ominously named national coronavirus command council (NCCC) has become the bogeyman of the moment.
The NCCC is made flesh in the person of co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma, who bears the brunt of opprobrium for the government’s lockdown.
In part this is because Dlamini-Zuma has the thankless task of administering the Disaster Management Act (DMA) and setting out the rules that govern the current sorry state of affairs. It was always going to make her the pedantic schoolmarm of SA – though she does appear to wear that mantle with surprising zeal.
That some of the regulations Dlamini-Zuma drones on about have been so utterly irrational hasn’t helped. More problematic is that the government hasn’t felt the need to explain itself to the nation – not about the seemingly arbitrary and paternalistic rules it dreams up, and not about a council that, on a very practical level, seems to run the country.
That, right there, is where the vacuum lies: information. In its absence, very real concerns have been raised about what “rule by command council” means for constitutionality, accountability and the exercise of power.
Thus far the government has not shown itself to be overly concerned about this.
DA leader John Steenhuisen tells the FM his party submitted questions to the office of the president 10 days ago asking for clarity on the following, among other issues: the legal mechanism used to establish the NCCC, and from which it draws its powers, responsibilities and functions; whether it duplicates the powers and functions of bodies already set up under the DMA; what its powers, responsibilities, functions and duties are; who its members are; and what positions the members hold.
“We have not yet received a reply,” he says.
And so the vacuum grows.
A contemptuous response
In a letter to the president, lawyers acting for advocates Nazeer Cassim and Erin Richards raise similar concerns.
But director-general in the presidency and cabinet secretary Cassius Lubisi has simply waved these away with disdain. “There are, unfortunately, seemingly a number of the trite principles of our constitutional democracy that we feel enjoined to set out,” he responds in writing. And then he launches into what is essentially a first-year lecture on the separation of powers and cabinet responsibility.
One part of the puzzle, at least, has been made clear by presidency spokesperson Khusela Diko – though quite why the government couldn’t give this information when President Cyril Ramaphosa established the NCCC in mid-March is less so. Diko tells the FM that the NCCC started out as a 19-member council of those cabinet ministers whose functional areas would be most affected by Covid-19. However, by its second meeting, it had become “abundantly clear that no area of government or life would be left untouched by Covid-19,” Diko says. At that point, the NCCC expanded to include all 30 members of the cabinet – 28 cabinet ministers, the president and his deputy.
The National Joint Operational & Intelligence Structure, which co-ordinates security and law enforcement operations, provides technical support, but does not sit on the council.
The NCCC is not a constitutional body, says Diko, but a co-ordinating structure of the cabinet that meets twice a week, reaches decisions by consensus, and makes recommendations to the cabinet on its Covid-19 response.
In short, it looks like the cabinet is making recommendations for the cabinet that the cabinet, acting as the cabinet, may or may not adopt. It’s governance by matryoshka doll.
The tail wagging the dog
Is this duplication of function? Two centres of power?
Neither, says Diko. Rather, she says, the NCCC has a “nimble and agile structure” that cabinet lacks – there are less stringent conditions about how council business is run, who can attend meetings and how documents are processed. It offers speed and flexibility in “the processing [of] issues requiring decisions and for consultation”.
It is, if you will, the Gummy Bear of government. Though arguably less caring.
Diko is at pains to point out that the NCCC is not a decision-making body – it simply makes recommendations that are “referred to the cabinet for ratification”.
However, much as we’re supposed to think of the NCCC as in some way distinct from the cabinet, the government has still seen fit to classify its minutes, because it’s a “co-ordinating structure of the cabinet”. (See News24’s report on the legal challenge around the tobacco flip-flop.)
If it all sounds confusing, that’s because it is. Particularly because, as the lawyers of Cassim and Richards make clear, the executive itself has on a number of occasions referred to the decision-making powers of the council. Ramaphosa, for example, said it was the NCCC that decided to institute the lockdown and extend it.
It suggests that the NCCC has real governance power – though that’s not something Lubisi really deigned to address in his response.
Steenhuisen also sees the council as less than benign. “[The NCCC] manifestly doesn’t function as a co-ordinating council facilitating the work of the cabinet, but has usurped the functions of the cabinet,” he says. “It is clear that the tail is wagging the dog.”
Which is why the issue of accountability is so important.
Absence of oversight
Back in the halcyon days of lockdown level 5, where at least you knew were you stood with the government, the DA submitted a request for an ad hoc committee to be established to ensure parliamentary oversight of the NCCC. The request was denied.
Says Steenhuisen: “[The NCCC] takes and makes all the decisions affecting the running of the country, while the National Assembly has no ability to access information or exercise oversight as intended in the constitution.” What it means, he says, is that the Command Council has the ability to overrule the president “and has done so”.
Lubisi seems less concerned about the matter: cabinet ministers account to parliament’s portfolio committees, he writes, and have been doing so since the legislature resumed work on April 21. The presumption, it seems, is that this is sufficient to cover their activities on the NCCC too.
Of course, how much oversight is actually happening is questionable, given time constraints and lack of attendance. It’s also difficult to manage oversight properly when there’s a porn stream running riot through the Zoom meeting feed, as happened during the National Assembly’s programming committee meeting yesterday.
But without oversight – without information – government risks eroding trust from the public at a time it needs it most desperately.
Internationally, the 2020 Edelman Trust Barometer suggests that public trust in government has risen as a result of the coronavirus crisis. In fact, international trust in government is higher than in any other institution for the first time in 20 years. “People are turning to their governments for leadership and hope,” says company CEO Richard Edelman. “This is a stunning turnaround for government.”
Yet in SA the opposite seems true. As the social fabric frays, grinding poverty bites and government opacity grows, trust – or Ramaphosa’s oft-mentioned “social compact” – seems to be unravelling, as Mark Gevisser argues in this Guardian opinion piece.
Open-book government is a good place to begin – after all, it’s what won health minister Zweli Mkhize so much support. How about we start by unpacking that matryoshka doll?
*De Villiers is the features editor of the FM
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