Let's debate empowering the legislative arm of the state to hold the executive to account, writes Kabelo Khumalo.
Let's debate empowering the legislative arm of the state to hold the executive to account, writes Kabelo Khumalo.

OPINION: Get our electoral system right

By Kabelo Khumalo Time of article published Apr 25, 2019

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JOHANNESBURG - With thirteen days left until the end of the fifth democratically elected government's term of office it's an opportune time to reflect on what soccer commentators would describe as “a game of two halves”.

The first half was dominated by a contracting economy, pronounced corruption and political and policy uncertainty.

The second half saw Jacob Zuma's administration doubling up on self-inflicted economic morass and the looting of state resources - with power utility Eskom a monument to Zuma’s incompetence.

It was only in the latter parts of the half that we saw optimism on South Africa’s economic and moral compass return with the elevation of Cyril Ramaphosa to the Union Buildings.

Much ink has been spilled on what ANC's victory and full term in office of Ramaphosa would mean for investment and growth trajectory - I will not add my two cents worth to the debate.

It takes a wicked mind to find good in the ruins of Zuma's years, but it was in his second term of office that we found what is exceptional about South Africa's Constitution - the separation of powers, particularly an independent judiciary.

When the fifth Parliament stood idle as the economy failed dismally to deliver a quality life for all and when at crucial moments it was complicit in the state capture project - it was an activist judiciary that saved South Africa from the brink of being a failed state.

We often pride ourselves in our bill of rights, but this is not what has made our Constitution stand the test of time.

No amount of free speech, rights of assembly and free press would have saved South Africa from being auctioned off to the highest bidder.

All failed states have in their constitutions a just bill of rights, but in the absence of an independent judiciary a bill of rights is just words on a piece of paper.

Even countries with presidents for life pride themselves on having a credible bill of rights.

The judiciary has frequently been called “the least dangerous branch” and this rings more true to South Africa.

It was a brave judiciary led gallantly by chief justice Mogoeng Mogoeng that saved the economy from eternal ruin.

We owe the framers of our founding document eternal gratitude for drafting something that ring-fenced the independence of the judiciary.

It was the Western Cape High Court that in 2017 put paid to the Zuma administration's decision to call for proposals for the procurement of 9.6 gigawatt of nuclear energy. The decision saved the fiscus R1trillion in ill-conceived procurement.

It was the Constitutional Court that in 2016 delivered Zuma a nosebleed in the consequential Nkandla judgment - a rare rebuke of the executive in the African context.

We can only hope that it will be the same judiciary with the assistance of a renewed prosecuting authority that will deliver justice to the proponents of the state capture project.

The 21st century economic and social development can't only be seen through the prism of the balance of payments or building a road or increasing tax collection - it has to also encompass the rule of law.

History has taught us that development without attention to the rule of law has resulted in failure.

A case in point is Argentina, which in the 1990s found itself in crisis. Many scholars have pointed to corruption and the lack of rule of law as the main causes for Argentina's economic woes.

Ramaphosa’s presidency has to turn the tide on consequence management and his legacy should be a functioning National Prosecuting Authority free of political manipulation and a fearless investigating authority.

The Zuma years also showed us the frailty of the structure of our Constitution.

This is that a rogue president can centralise power and render the investigating and prosecuting authorities toothless.

Even legislators, as evidenced by the Zuma years, can be useful tools in rubber stamping anti-development policies.

Ramaphosa will enjoy the same wide-ranging powers as Zuma did. This means we are at all material times at the mercy of the personality and integrity of the incumbent.

We need to have a frank debate on how we can have an electoral system that empowers the legislative arm of the state to hold the executive account.

I don't see how we can achieve this in a system that elects the executive, national assembly and national council of provinces in the same manner.

Our electoral system means too much power resides unchecked at the Union Buildings, leaving the judiciary as the sane voice in the wilderness.

The direct election of a president and members of Parliament might yet be the best solution for South Africa to ensure that our public representatives act on behalf of their employers - the electorate.


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