The Star / 12 July 2013, 11:37am / Eusebius McKaiser
Johannesburg - The sheer arrogance of people in political power – and their spin doctors – is quite amazing. Not even a looming election cycle can make them mask their disdain for public accountability. Mac Maharaj, President Jacob Zuma’s spokesman, is the most recent example of this tendency. It is worth pausing over a very instructive moment to consider his actions this week.
He saw it fit to send out an official press statement telling the media and commentators that they should chill. Zuma, he says, has no constitutional duty to explain his cabinet reshuffle. All we got from Zuma was “Thank you… and goodbye!” after he read out his statement with the list of name changes before exiting the room.
Is Maharaj’s point compelling?
Not at all. In fact, it is dangerous for the health of our democracy. There is a bizarre attitude among many elected politicians that good leadership merely requires that you don’t break any laws. Other norms, to do with ethics or political morality, are apparently not important to comply with unless you got it all that morning, and the public should feel oh so lucky that you’re in a good enough mood to live up to non-legal standards of good leadership.
Here’s the problem with that: good leaders are transparent about their thinking on key political decisions. They are able to articulate it and defend it. Even if the law doesn’t require you to speak to the public about every decision, the law also doesn’t say you will be locked up if you take the public into your confidence.
The question to ask is therefore not “Do I have a legal duty to explain myself?” The real leadership question is, “Do I owe the public an explanation of this particular decision as a matter of responsive and accountable government?”
Maharaj defended Zuma’s silence on the first question, and correctly so from a legal viewpoint. But it is an unacceptably low bar to set for public power accountability. The more acceptable political – not legal – bar in a democracy that is founded on openness, transparency and accountability is to engage your citizens in dialogue at key moments such as these. Unless, like some chiefs in the rural areas, you think citizens are your subjects.
Of course, modern government is too complex for every decision taken by a president to be explained. That isn’t the implied requirement flowing from my criticism of Maharaj.
But who would deny that a cabinet reshuffle is sufficiently important to field a few questions about it? In this case it was left to us commentators to play sangomas and impose speculative logic on the president’s decisions.
Yet, judging from the varied and incompatible analysis from seasoned political journalists and pundits alike, the country would have benefited from hearing the captain of the ship explain himself off-the-cuff. (And someone might want to tell Maharaj that the president comes across better, anyway, when speaking freely.)
The legal point made by Maharaj is technically correct but overstated here. I have no doubt the Constitutional Court would agree with Maharaj on this case. Cabinet ministers serve at the pleasure of the president as a matter of law. And Constitution Hill would not want to undo the doctrine of separation of powers. This doctrine, a basic precept of how branches of government should function in a democracy, requires the three branches – the judiciary, the executive and Parliament – to respect each other’s roles and functions so that government can function optimally.
But the public must not be misled. Some prerogatory powers can be reviewed by the judiciary. Former president Nelson Mandela in the 1997 Hugo case had to defend his prerogatory decision to grant early release to moms in prison who have children under 12. His lawyers had to answer the complaint of unfair discrimination against other prisoners. The point here is that Maharaj would do well not to accidentally confuse “prerogatory” for “arbitrary”.
Of course, cabinet reshuffles should not be reviewed. But Maharaj should not inadvertently mislead the public about the general constitutional pressures that bear on prerogatory powers. All public power must be exercised with a consistent respect for the principle of legality.
Finally, this hubris must be seen in the context of wider societal developments. We have struggled, for example, to get Public Works Minister Thulas Nxesi to further engage the public on whether he might have lied to Parliament about who initially classified the Nkandla report as top secret.
And civil society has battled to get the Protection of Information Bill sufficiently modified to entrench transparency and openness.
Maharaj’s defence of his boss’s silence can therefore not go unengaged. It is a narrow constitutional defence, but shocking political reasoning.
Politicians forget they serve at our (dis)pleasure. We’ve also got the power to reshuffle without stating reasons.
* McKaiser hosts Power Talk with Eusebius McKaiser weekdays on Power FM 98.7 from 9am to noon. He is an associate at the Wits Centre for Ethics
* The views expressed here are not necessarily those of Independent Newspapers.