Constitutional Watch

Reasons for cabinet reshuffle – Zuma-appeal blew chance

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President Jacob Zuma's appeal against a court judgement ordering him to supply reasons for his recent cabinet reshuffle, blew a chance to steal a march on his opponents.

His grounds for appeal are surreal. He invokes the meaning of a rule set by the apartheid context he ferociously fought against, to justify his executive action in a democracy.

As the dust was started settling on his recent controversial  cabinet reshuffle, a new storm erupted. The country’s High Court ordered him to give the reasons for his decision.

The governing African National Congress (ANC) is infuriated. The ANC in KwaZulu-Natal organised a march against what the party regards as judicial overreach.

The president is appealing. The main point of his lawyers argument is that the court erred in the way in which it interpreted a Rule 53 of the Uniform Rules of Court.

The rules came into effect in 1965 (predating the end of apartheid) to optimise the administration of justice, specifically in relation to the review of administrative or quasi-judicial decisions with pernicious consequences.

The premise of the judge’s ruling seems to be that accountability in the exercise of executive authority is sacrosanct in a constitutional democracy.

Its application in the past has been limited to administrative functions, never an executive function. It’s on this basis that Zuma’s lawyers are arguing that Rule 53 cannot be used to review and set aside an executive decision.

Surreal interpretation of the law

The judge’s interpretation attempts to sync the meaning of the Rule 53 with South Africa’s constitutional democracy. For his part, Zuma’s literal interpretation draws from the apartheid logic, where executive sovereignty reigned supreme. In the past, the power of the president was akin to royal prerogative.

The judge argued that this “is a relic of an age past” and not part of the foundational logic of the post-apartheid state.

The president’s grounds for appeal appear surreal. How can the meaning of a rule – determined by a context that the president ferociously fought against as a freedom fighter – be invoked to justify his own executive action in a democracy?

This is not a question of law, but of exemplary leadership in a society where the rule of law lies in the constitution.

In taking an oath as president, Zuma committed himself to, in the words of eminent scholar of government Louis Gawthrop; the service of democracy, (which) requires, at least, a conscious and mature awareness of the ethical impulses of democracy, the transcendent values of democracy, and the moral vision of democracy.

Indeed, Zuma’s executive authority includes the power to appoint and fire the deputy president, ministers, and deputy ministers.

In other words, at issue is not the executive authority of the president, but how this authority is exercised.

The ruling – right or wrong – compels the nation to ask the question: Is Zuma’s exercise of his authority in sync with the objectives of the country’s hard-won democracy, as formalised in the constitution?

In a constitutional democracy, a concomitant of executive authority is accountability – a function of rationality. In other words, the president’s executive powers are not absolute, even though they are wide-ranging.

Beyond the legalese of a cabinet reshuffle

In a desperate attempt to extricate himself from a sticky situation, Zuma has dug in his heels, clinging to the interpretation of law that belongs to the apartheid era.

Lest we forget, the Zuma presidency institutionalised monitoring and evaluation systems to keep in check the performance of state bureaucracy as well as ministers. For, as the former City of Los Angeles Board of Efficiency director Jesse D Burks aptly put it: “… most men cannot hold themselves to their highest standard of efficiency unless they are constantly stimulated by the prospect of a rigid and impartial appraisal of their work.”

Zuma thought, correctly, that a means to achieve this with his ministers was through performance agreements. These are important to check achievements against outcomes, and to detect misdirection of effort and waste.

They are also important because they give effect to outcomes-based governance where the focus is on the impact of state action. Of critical importance is positive change in the well-being of citizens.

A big part of outcomes-based governance are performance agreements between the president and ministers. These are linked to key outcomes, indicators and targets in the Medium Term Strategic Framework relating to the legislative mandates of respective government departments.

The framework focuses attention on government issues that are critically important. These, in turn, are based on the manifesto of the governing ANC, and linked to a five-year electoral mandate.

Outcomes-based governance is an excellent model to optimise the state. Monitoring and evaluation systems generate performance data for the president to determine who in his cabinet performs, or does not.

With all these in place, why have the reasons for the cabinet reshuffle not been forthcoming? Why has it taken the intervention of the judiciary to compel the president to furnish them?

Wittingly or unwittingly, by introducing performance agreements Zuma promised that his decisions to reshuffle the cabinet could be based on rationality.

Why is he now acting against the logic of the architecture of his administration which promises accountability in the exercise of executive authority?

Missed opportunity to be the best

Had Zuma followed through on the logic of his administration, he would have turned out to be the best president who, in the words of influential Baltimorean journalist H.L. Mencken, “understands that as democracy is perfected, the office of the president represents, more and more closely, the inner soul of the people.”

He would have outsmarted the main opposition party, the Democratic Alliance (DA), which brought the case to court. After all, he’s in a position to account to the nation about the performance of cabinet members, using performance data generated from their performance agreements.

By making this part of the culture of accountability, alternative narratives – beyond the score cards published annually by the DA, assessing the performance of government – would have emerged. These would have provided an informed understanding of the state of the State.

The court case underscores the confluence of accountability and rationality in the exercise of authority in a constitutional democracy. Why is this difficult to understand?

                                                                                                    by Mashupye Herbert Maserumule

(This is a slightly edited version of an article by Mashupye Herbert Maserumule of the Tshwane University of Technology. It was first published on The Conversation website.)

by Mashupye Herbert Maserumule

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