Much is misunderstood in this painfully divisive issue, writes Paul Ngobeni.
Johannesburg - The president’s legal team eschewed an important constitutional principle and failed to remind the Constitutional Court of very important principles enunciated by the court in earlier cases.
In Doctors for Life International v Speaker of the National Assembly and Others (2006), the court warned that: “Where the constitution or valid legislation has entrusted specific powers and functions to a particular branch of government, courts may not usurp that power or function by making a decision of their preference.
“That would frustrate the balance of power implied in the principle of separation of powers. The primary responsibility of a court is not to make decisions reserved for, or within, the domain of other branches of government, but rather to ensure the concerned branches of government exercise their authority within the bounds of the constitution.
“National security is subject to the authority of Parliament and the national executive.”
Thus, the question was not whether the Public Protector’s unreviewed findings contained in reports were “binding” or not.
The question was whether the national executive and Parliament’s dealing with Thuli Madonsela’s findings and report was consistent with the former’s constitutionally mandated duty of ensuring national security.
Sometimes the executive or legislative branches make decisions that involve policy-laden and poly-centric decision-making and the courts are not always well-suited to make decisions of that order.
Lon Fuller in his famous essay: “The Forms and Limits of Adjudication” recognised that adjudication was but part of legal order, and noted that it is in the “field of administrative law” that these issues “become most acute”, not least because that law will be used in a complex society to resolve problems that require decision-makers to take into account the implications of their decisions for other, sometimes many other issues, and also to base their decisions on factors that are not amenable to adjudication.
As Corder et al made clear, some Chapter Nine institutions must be seen as complementary to Parliament’s own oversight function and thus require a lesser degree of independence:
“With the complex nature of modern government, members of Parliament often do not have the time and resources to investigate in depth, (and) to arrive at an impartial decision on the complaint.
“Hence, State institutions supporting constitutional democracy have been created to assist Parliament in its functions.”
The relevance of this analysis is made clear by the following factors in the Nkandla case - when it comes to parliamentary oversight of executive action, the Public Protector’s report is just one of the many factors Parliament must consider.
Parliament may need to take into account reports from police and security officials who are also charged with the constitutional duty of ensuring security for the head of state and members of the executive.
In Parliament’s evaluation of competing reports from various role players, Parliament is entitled to give whatever weight it thinks the Public Protector’s report deserves, taking into account expert opinions from police and security officials who are more qualified to opine on security features for a head of state.
Within that context of Parliament’s evaluation, it is meaningless to speak of the Public Protector’s report as “binding” and it is grossly misleading to imply that the report of a Public Protector (who is accountable to Parliament) can ever be binding on Parliament.
The Public Protector shall submit to Parliament half-yearly reports on the findings in respect of investigations of a serious nature, which were conducted during the half-year concerned.
The afore-going section makes it very clear that the Public Protector is accountable to Parliament and may submit reports on findings of particular investigations if “it requires the urgent attention of, or an intervention by Parliament”.
The Speaker’s legal counsel should have argued the point before the Constitutional Court regardless of the unwise concessions made by the President’s legal team.
The constitution is purposely worded to make clear who has final authority on matters of national security in this country. Section 198(d) of the constitution unambiguously states that “national security is subject to the authority of Parliament and the national executive”.
In a similar vein, section 166(1) of the same constitution states “judicial authority of the Republic is vested in the courts”.
“To give effect to the principles of transparency and accountability, multiparty parliamentary committees must have oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament.”
On a practical level, it is the executive branch, to which the responsibility of ensuring the security of the state is constitutionally committed.
The authority to make a risk assessment and to employ appropriate means commensurate with the risk flows primarily from the constitutional investment of power in the executive and in the President by the “Commander in Chief” clause of our constitution.
In addition, implementation and installation of security measures at the private residences of former and current presidents are governed by Cabinet policy of August 20, 2003.
The SAPS, together with the National Intelligence Agency (NIA), shall evaluate the security situation of private properties that are owned and regularly used by the President, the deputy president, former president, deputy presidents and (in exceptional cases) their families.
The minister’s lawyer was free to argue that under our constitutional scheme, the Public Protector, like the courts, has no roving missions or unbridled power to define national security for the Presidency.
Those powers are reserved exclusively for Parliament and the national executive. Conversely, neither Parliament nor the executive branch is given the power to usurp the judicial authority exclusively reserved for the judiciary.
A disciplined constitutional scholar would never countenance a situation where parties such the courts or even Chapter Nine institutions play a role that the constitution expressly and exclusively committed to the political branches.
It is incompetent for Chapter Nine institutions such as the Public Protector to arrogate to themselves powers to define national security and then to decide what measures would be deemed appropriate to deal with grave threats to national security and security of presidents.
Public Protectors, just like the courts, are neither authorised nor equipped to oversee the national executive to the extent of micro-managing assessment of security needs and installation of security upgrades.
This by no means suggests that the Public Protector may not question or should condone excessive costs incurred during the said security upgrades. What is unacceptable is a situation where the Public Protector, under the guise of investigating wasteful expenditure of public monies, arrogates to herself the power to determine what security measures are appropriate for the presidents in the first place.
The notion that a Public Protector’s findings can ever be “binding” on Parliament is a legal absurdity.
* Paul Ngobeni is a legal expert.
** The views expressed here are not necessarily those of Independent Media.
The Sunday Independent