Flip Buys says the abuse of President’s huge powers of appointment are at core of problem
Zumafication is the result of the President’s constitutional powers of appointment.
President Jacob Gedleyihlekisa Zuma virtually single-handedly has dragged our country to the brink of the abyss. He has done so by his strategy of “Zumafication”, by means of which he has high-jacked the country’s key institutions by “deploying” loyal cadres and personal friends as the heads of those institutions. He is controlling the country largely by means of this network of personal appointments instead of through the official institutions.
In this way, these institutions are being abused to benefit and protect Mr Zuma and his network, instead of delivering effective services in the national interest. The disastrous results of Zumafication are the main reason why many experts have come to the conclusion that Jacob Zuma is fraught with corruption and fundamentally incompetent to govern the country.
However, the reason why Mr Zuma is so powerful that he can ruin a country is hardly ever discussed. The basis of Mr Zuma’s position of virtually unlimited power is his extensive powers in terms of the Constitution. It is puzzling why those who almost daily tear Mr Zuma apart, usually have nothing to say about the system deficiencies that allow his abuse of power.
Jacob Zuma therefore is not the only cause of the problem, but rather the unintended but foreseeable consequences of the exceptional powers vested in the Office of the President by the Constitution. The most important factor that is making uncontrolled Zumafication possible is his comprehensive powers to make key appointments.
Powers of appointment
This system problem was put squarely on the table back in 2014 by the recently retired deputy chief justice of the Constitutional Court, Dikgang Moseneke. In a lecture given at Unisa on the state of constitutional democracy, he asked whether a powerful presidential system really was in the best interest of the country. Judge Moseneke pointed out that the glowing pronouncements regarding the constitutional architecture were focused on all the constitutional rights and freedoms. Very little, however, was said about the allocation of power – which is not optimally conducive for democracy. Judge Moseneke suggested that this allocation of power should be revised, but it has not received much attention so far.
Judge Moseneke emphasised that the Constitution and other legislation vested a remarkable volume of powers of appointment in the President. In some cases, parliament and other state institutions are co-responsible, but in most instances the power is vested exclusively in the President.
Judge Moseneke said according to his information, the negotiators involved in disputes over powers of appointment during the drafting of the final Constitution were perfectly happy to vest those powers in the then incumbent, President Mandela. They trusted him to do the right thing. In this way an enormous amount of power ended up in the hands of his successors, and not all of them were doing "the right thing".
Judge Moseneke spelt out some of the most important presidential powers of appointment (which are also powers of dismissal), that have allowed the Zumafication of the country to come about. These cover inter alia the following posts:
The deputy president, who is not elected as in other countries;
Ministers and deputy ministers;
The chief justice and deputy chief justice, after consultation with the Judicial Service Commission;
All judges, on the advice of the Judicial Service Commission;
The heads of numerous key public institutions such as the national director of public prosecution, the public protector, the auditor-general, members of the Human Rights Commission, the Independent Electoral Commission on the recommendation of the National Assembly, as well as the other section 9 constitutional institutions to promote democracy;
Commissioners of the Public Service Commission, who appoint public servants;
Heads and commanders of the defence force;
The head of police;
The head of the Intelligence Service;
The heads of the Reserve Bank, the Revenue Service and the Independent Communications Authority of South Africa.
Judge Moseneke also discussed a number of legislative instruments in terms of which the president may make further appointments, such as the statistician-general, the President and Deputy President of the Reserve Bank, the commissioner of the Revenue Service, the members of the Tax Court, and the members of the Independent Communications Authority of South Africa.
Even in cases where the President has to make important appointments in consultation with parliament or other state institutions, in practice the President’s preference is decisive.
The heads of the country’s 715 public enterprises such as Eskom, the SAA, the SABC, Transnet, Denel, the Post Office and others are appointed by the Minister concerned, who in turn is appointed by the President. The minister asks the Cabinet’s and the President’s approval for appointments of the heads of the public enterprises, giving the President direct or indirect power or in appointments. To make doubly sure, the “deployment committee” of the National Executive Committee of the ANC (with Mr Zuma as ANC-President) approves the appointment beforehand. Mr Zuma recently also put himself in control (through the cabinet) of the public enterprises.
Of course, this does not mean that all these incumbents are incompetent or part of a corrupt network, but it does mean that the President wields power over their appointment and dismissal. Therefore, Judge Moseneke’s core question is how the appointments of public democratic institutions can be protected against the preferences, whims and fancies of the individual making the appointments.
To put it differently, Judge Moseneke asks what the best way is to entrench the integrity and efficiency of public institutions that are essential for a democratic dispensation. In particular, the big question is how these appointees can perform their constitutional mandate to hold the executive authority accountable if in fact they are appointed by the President. Judge Moseneke predicted that, going forward, this dangerous concentration of power could be ignored only at the country’s peril.
He also asked whether democracy is best served by the comprehensive powers of appointment vested in a powerful, central executive President. According to him, it goes without saying that appointments jointly made by a group will be less vulnerable than appointments made by a single functionary.
Zumafication is an unintended but largely foreseeable result of the comprehensive powers vested in the President by the Constitution. In view of the ANC’s preference for a totalitarian form of government declared over decades and the risk of such a position of power being misused, so many powers should never have been vested in a President. Therefore, the sorry state of affairs cannot be blamed only on an incompetent and corrupt President and his submissive party.
It is imperative that the system error that allows a Zuma to occur be revised urgently so as to prevent this or a next “Zuma” from pushing the country over the precipice. The powerful presidential system poses a threat not only to the constitutional democracy but also to the country’s future.