Pretoria - The president’s right to exercise personal preferences in appointing people to top positions of public institutions might be a hindrance to democracy, Deputy Chief Justice Dikgang Moseneke said on Wednesday.
The judge told a gathering at Unisa that there was a remarkable concentration of the president’s powers of appointment - which was not in line with the separation of powers.
Only in a few instances did the president exercise powers of appointment together with Parliament and other organs of state: “As for the rest, the president appoints with exclusive discretion.”
The judge was speaking at a conference titled “20 years of democracy in South Africa: Where to now?” His topic was “Reflections on South African Constitutional Democracy - transition and transformation”.
The two-day event was hosted by the Thabo Mbeki African Leadership Institute and Mapungubwe Institute to reflect on the past and find a way to move the country into the next two decades of democracy.
Judge Moseneke questioned the wisdom of appointing members of the cabinet exclusively from Parliament, and asked whether that best advanced the duty MPs had to hold the executive to account.
“If their career logical advancement is within he national executive, are Members of Parliament likely to rattle the executive cage, will they fulfil their constitutional mandate by holding the national executive to account?” Judge Moseneke asked.
“This uncanny concentration of power is a matter which, going forward, we may ignore but only to our peril,” he said.
The deputy chief justice and former Robben Island political prisoner also said the courts of the country had on several occasions adjudicated challenges against the rationality of several appointments made by President Jacob Zuma.
“It is self-evident that an appointment by a deliberate collective is less vulnerable to a legal challenge or rationality than an appointment by an individual functionary,” he said. The ultimate question, he said, was how best appointments of public functionaries to institutions that girded the country’s democracy could be shielded from personal preferences and the whims of the appointing authority. He suggested revisiting the dispersal of public power in the next two decades, saying an attempt at amending executive power could be a difficult task.
The anecdotal account, he said, was that at the time of the formulation of the final Constitution, parties relied on the integrity of then president Nelson Mandela to do the right thing when appointing public functionaries.
As an individual functionary, the president had power to appoint across many sectors. This included the deputy president; ministers of cabinet and their deputies; leaders of government business to the national assembly; ambassadors; the chief justice and his deputy in consultation with the judicial service commission; and the president of the supreme court of appeal.
Moseneke mentioned a host of other heads of institutions, parastatals and government bodies, and said: “As you would expect, powers of appointment are often coupled with powers of removal, albeit subject to some prescribed process.
“How best must we safeguard the effectiveness and integrity of public institutions indispensable to the democratic polity?” he asked.
He spoke of land restoration; equality, non-racialism and restitution and social justice; and he also spoke of executive power and public institutions.
On the last topic, Moseneke said the ideals of the Constitution made provision for fundamental rights and freedoms. “And yet the manner in which public power is allocated within it is not always optimal for advancing our democratic project.”
Race was still a marker of social inequality, and the income disparity had become bigger. “Despite the advent of democracy the tide has shot up,” Moseneke said.
@ntsandvose
Pretoria News