OPINION: While political parties enjoy the right to deploy their members to our legislatures across the spheres of government, they do not have the right to undermine the credibility of our democratic institutions, writes Lukhona Mnguni.
From the Constitutional Court to the Zondo Commission of Inquiry, Parliament has received enough lamentations on dropping the ball when it comes to accountability work.
The duty to build a capable state involves the need for a strong Parliament as one of the important democratic institutions. In our constitutional architecture, the doctrine of separation of powers is valuable in its aspiration to foster accountability and constitutional supremacy.
There are three arms of the state: the executive, legislature and judiciary.
The judiciary’s independence is fairly entrenched and understood by all – even with the latest attacks levelled against the judiciary from some political quarters.
The huge contention is on the independence of the legislature, given that ours is a parliamentary executive, in that the president appoints the majority of his Cabinet from “among the members of the National Assembly”, as per the Constitution.
The deputy president and appointed ministers continue to be members of the National Assembly. Tellingly, the president is precluded from appointing into his executive members of the National Council of Provinces (NCOP) including the permanent delegates. It appears the NCOP is insulated from unwarranted executive interference, unlike the National Assembly.
This is what needs robust engagement if we are to strengthen our constitutional democracy.
Parliament is composed of two houses – the National Assembly and the NCOP. The former needs greater protection from executive interference, as observed in the recent Cabinet reshuffle by President Cyril Ramaphosa.
During his Cabinet reshuffle, President Ramaphosa ejected the minister of defence and military veterans – Ms Nosiviwe Mapisa-Nqakula – from his Cabinet and replaced her with the sitting Speaker of the National Assembly, Ms Thandi Modise.
This has raised an important debate on the doctrine of separation of powers. The Constitution prescribes that “at the first sitting after its election … the National Assembly must elect a Speaker and Deputy Speaker from among its members”.
The election of the Speaker is presided over by the Chief Justice or a designated judge – that is how important the occasion is. Upon being elected, the Speaker (with whom the authority of the National Assembly is vested) presides over the election of the president.
The Speaker, therefore, is a first among equals in the National Assembly. Following the 2019 general elections, Ms Modise was elected to become Speaker by 250 Members of Parliament (MPs).
This means at least 10 MPs not belonging to the ANC voted for her to be Speaker, given that the ANC has 240 seats in the Assembly. The big question then: Is the president allowed to purge a sitting Speaker and undermine the will of all the MPs who voted for the Speaker?
Though constitutionally precluded, the president can appoint the chairperson of the NCOP as one of the two appointments he can make outside of the National Assembly. Technically the president can undermine and interfere with Parliament; however, is it permissible within the doctrine of separation of powers?
These are the questions that led us (myself, Dr JJ Onkgopotse Tabane and New Nation Movement) to warn the Deputy Speaker of the National Assembly, Mr Lechesa Tsenoli, that the election of the new Speaker – Mapisa-Nqakula – is clouded in unconstitutional conduct for a variety of reasons, including the foregoing.
Many have embraced our approach to point out to possible constitutional breaches by President Ramaphosa and his political party – the ANC.
Some have sought to critique our positionality and the desirability of such action – sending a lawyer’s letter to Parliament and effectively entering the space of political action.
It is the duty of all citizens to protect our constitutional democracy, no matter how discomforting it might be to others. We continue to consult with the possibility of court action to review the events that have taken place between the Executive and Parliament, in the past few weeks.
Exploring the rogue, corrupt and unconstitutional conduct of the State Security Agency, Dr Sydney Mufumadi at the Zondo Commission of Inquiry asked a startling question, “Why was Parliament sleepwalking?”
He suggested that if “we are not safe in the hands of a body as important as that …” then the “whole nation went to sleep”. These sentiments indicate the importance of Parliament and the need for its protection to execute on the accountability mandate.
But there is an obstacle on the path towards a truly independent Parliament – the ANC’s cadre deployment logic.
Given that the ANC holds a majority in Parliament, some people believe it has the right to deploy as it wishes, including President Ramaphosa.
When he was reshuffling his Cabinet, he said, “Minister Nosiviwe Mapisa-Nqakula will be deployed to a new position …” This means the president of the country had a destination in mind. He conflated his role as president of the ANC and that of the Republic.
As the former he could, perhaps, deploy Mapisa-Nqakula but not in the latter role. For this reason we are of the view that the president interfered with Parliament, or at worst, breached the Constitution by undermining the independence of the National Assembly.
While political parties enjoy the right to deploy their members to our legislatures across the spheres of government, they do not have the right to undermine the credibility of our democratic institutions.
When they do so, it cannot be sustained that the only saving grace citizens have is through the ballot paper on voting day. This logic would hamstrung our institutions in-between elections with no recourse.
The courts are there to put a stop to excesses of political power. These excesses are embodied in the impunity with which President Ramaphosa and the ANC have conducted themselves in the elevation of Mapisa-Nqakula to the highest position in the National Assembly.
Because of the arrogance embedded in the cadre deployment logic of the ANC, the president has not dared explain to the public why Mapisa-Nqakula is unfit to serve in his Cabinet, but is suitable to steer the National Assembly, our cardinal oversight institution over the same executive in which she failed to retain her position. This impunity must be stopped.
* Mnguni is a political commentator and radio host