14 March 2008

NATIONAL ASSEMBLY
PRIVATE MEMBERS COMMITTEE

DRAFT CONSTITUTION EIGHTEENTH AMENDMENT BILL, 2006 PRESENTATION BY MANGOSUTHU BUTHELEZI, MP Cape Town: March 14, 2008
 

QUESTION AND ANSWERS

ON THE CONSTITUTION EIGHTEENTH AMENDMENT BILL Sections of the Constitution are referred as "section", while clauses of the Bill as "clauses". 

Q.:       Why is the President elected by Parliament?

A:        Because if elected by the people he
[a] would have a strong political mandate potentially competing with that of the Prime Minister and prompting him to interfere in the politics of the day;
[b] would need to run an election which would be divisive and which would echo the political platform of parties;
[c] could not be elected by two thirds majority and even if one resorts to a two-tier election system, he could only achieve an absolute majority.  The two-tier election system operates when there are more than two contenders and a second election is held between the two with the highest score in the first election. 

Q:        Why is the President elected by the National Assembly only?

A:        this is in line with the present schema of the Constitution which leaves the responsibility of choosing the present President to the National Assembly only.  However, one could also consider having the President elected by a joint sitting of Parliament.  However, the matter needs to be tied to the confirmation of the Prime Minister which leans against this option. See below. 

Q:        Why is the Prime Minister not elected by the people but effectively chosen by Parliament?

A:        Because the Parliamentary system strengthens Parliament and promotes its centrality.  This is already entrenched in our present Constitution which does not call for the President to be elected by the people.  In this respect our Constitution provides for a hybrid between an executive and a parliamentary system in that the President is not elected by the people. 

Q.        Why does the Prime Minister need to be confirmed and can be removed both by the National Assembly and the NCOP?

A.        This is to strengthen the role of the NCOP and increase democracy.  In a parliamentary system the PM as Head of Government is accountable to the entire Parliament as both Chambers, even though the President is elected by the upper Chamber only.  This is also because the PM can be elected by a simple majority while the President's election requires at least an absolute majority. 

Q:        Is the PM chosen by the President or by Parliament?

A:        The President chooses him but can only choose the one whom Parliament would choose or approve of, because Parliament needs to confirm it.  Whenever there is a clear parliamentary will, the President has no discretion.  However, in time of crisis when a coalition needs to be formed the President has latitude to shape politics, which often may include several attempts before the right PM backed by the right coalition is accepted by Parliament. 

Q:        Is the President a purely ceremonial or titular figure?

A:        No he is not.  Even though all the executive powers are transferred to the PM, the President has a broad range of own powers which he exercises independently, such as those of assenting laws and performing a preliminary assessment of constitutionality, the long list of sensitive powers set out in section 84[2] as adjusted by clause 10.

He has other powers which he must exercise in concert with other organs of state such as the appointment of ambassadors, dissolving the Parliament, appointing certain Constitutional Court justices and members of the Judicial Service Commission and other officers of Chapter 9 Institutions. There are also important requirements for the President to be consulted, as in the cases of declaring war or deploying the defence forces. Therefore, it is incorrect to suggest that the position of the President in terms of this Bill would resemble the symbolic powers of the King of Lesotho or the ceremonial functions of King Zwelithini.  In fact, if anything it resembles the powers and functions of the Heads of State in Germany, Spain and Italy whose constitutional systems are very similar to ours as they have regions or provinces and a lower chamber representing them. 

Q         Why at times a power vests in the President while in others it vests in the PM?

A.        Executive functions vests in the PM, save for when it is necessary to ensure that such functions are exercised not to follow the policies of the day but to check and control them so as to protect the constitution.  Therefore, the President appoints the following officials after consultation with the PM and, as the case may be the Judicial Service Commission or other relevant organ of state and/or leaders of political parties: the Public Protector, the Auditor General, members of the Judicial Service Commission [save for the four which are an executive prerogative], members of the Public Service Commission. the justices of the Constitutional Court [save for its Chief Justice and his Deputy whose appointments are more policy charged, in which respect the President still needs to be consulted].  However matters relating to the removal of such officers, which are often controversial, remain an executive prerogative In other respects the PM needs to consult the President before taking action as when declaring a state of emergency, even though the PM and the President must concur before the defence forces are deployed.  These elements are features of a comprehensive system of checks and balances       

Q:        Is this type of parliamentary democracy consistent with the trend in Africa?

A:        Undoubtedly the overwhelming number of African democracies is based on an executive Presidency.  This may be a reason not to follow that trend and seek better solutions.  In the past half century of post colonial experience in sub Saharan Africa almost all executive presidencies have highlighted major problems and all such democracies have suffered major crisis.  Our present Constitution has already, in many other respects, not followed trends present throughout Africa exactly in the hope to learn from the mistakes made elsewhere, which is the advantage of our country being the last to achieve its liberation.

The problem with most African countries has been that all powers have been centralized in one office held by one person.  Often the rest of Africa looks up to South Africa to find a precedent to solve its problems, and also in this respect we may have the responsibility of leading rather than following 

Q:        Why opting for the British system over the French one?

A:        As stated above the direct election of the president does not achieve the desired result of having a Head of State who is above parties' politics.  The French system of "co-habitation" is a complex and peculiarly French one which accounts for the fact that it has not been exported elsewhere.  It would be a major departure from our present constitutional schema and traditions and is likely to create conflict if imported into our experience. 

Q:        Does the Bill add real value as compared to the present Executive Presidency?

A:        Very much so.  As set out in the memorandum to the Bill, the value of having a President and a Prime Minster is very significant in ordinary times and becomes enormous in times of crisis or turmoil.  He strengthens our Constitution and its democracy by adding an additional system of checks and balances.  The controversies arising out of daily government, especially during difficult times, will not tarnish the presidency, while the PM will find himself to be stronger in dealing with them. The PM can have the institutional latitude to be unpopular at times without compromising the office of Head of State or discrediting our entire systems of government in the eyes of our people.  Even at the worst times, people will have a reference in an office and in a person who can be detached from the trouble of the day and be a symbol of unity.   There are also fundamental functions which must carry the credibility of being performed above the politics of the day and the conflicts of the season, such as the appointment of constitutional justices and other office bearers of the institutions which support democracy.  For these institutions to be effective, they must only not be the expression of, and beheld only to those whom they are called upon controlling and holding in check and balance.  Moreover as the term of office of the Head of State does not coincide with that of the legislature which elected him, the Head of State can be a bridge between one political season and the next one.  The value of parliamentary democracy as opposed to an executive system of government shows more clearly at times of crisis and during extraordinary circumstances.

Because of his "inherent powers" [section 84(1)] the role of a Head of State is stronger in the time of crisis by virtue of the very function he exercises and without resorting to extraordinary or emergency powers.

The PM is also made stronger.  He is freed from time demanding commitments in South Africa and abroad, which limit his capacity to deal with the serious social and political issues of the day.  By not being the Head of State he could be more forceful in taking political positions antagonising opponents and getting the job done.   

Q:        Are there disadvantages to classic parliamentary democracy as opposed to an executive system?

A:        Not really compared to our present system.  If one were to compare it to a classic Executive Presidency there could be disadvantages if there is no certain parliamentary majority which could force votes of no confidence and various changes in the Executive.  But in any case our Constitution does not have a pure Executive Presidency and combines the problems of an Executive Presidency with those of a parliamentary system, in that the President could be voted out of office before the end of his term.  The added disadvantage under our present Constitution when such a crisis occurs, there is no stewardship of the Republic and the firing of the Head of Government leaves the Republic also without a Head of State. 

Q:        What happens to the Leader of Government business?

A:        The position of Leader of Government business is not provided for in the present Constitution and is not affected by the Bill. 

Q:        Who deputizes the President as there is no Deputy President?

A:        The need of deputizing the president in a parliamentary democracy is greatly reduced.  It does not need to be deputized when he is abroad.  Under our Constitution there is a contradiction as when the president is abroad there is an acting President in the country because of the need to have a Head of Government at home, with the consequence of having two Presidents, as the President abroad needs to have his powers to act as a Head of State to, for instance, sign treaties.

Because the powers of a President in a parliamentary system do not regard the day-to-day running of Government there is a lesser need of deputizing in the case of illness or vacation.  However, whenever such need arises the functions are exercised by the Chairperson of the Council of Provinces., on the basis of a standard system of check and balances. 

Q:        Why was the parliamentary system not adopted at CODESA?

A:        Our present Constitution has already gone a long way in adopting many of the features of a parliamentary system and it is a hybrid which has already greatly departed from the typical features of an Executive Presidency. At the World Trade Center negotiations, the matter was sufficiently considered because the prevailing concern was breaking away with the past and empowering a President who could be the symbol of our victory over apartheid and be liberation personified.  As our democracy grows, we need to de-personify our institutional life so that the strength of our institution may compensate for any flaw which its incumbents may have.   

Q:        How does the function of the President as a guarantor of the Constitution differ from that of the Constitutional Court of the Chapter 9 institutions?

A:        The responsibility of guaranteeing and protecting the Constitution is spread across all organs of State.  The President would be a guarantor of the Constitution not from a judicial viewpoint but from a political and institutional one.  The most salient aspect of this power is that of assenting laws.  When a President assents a law he needs to perform a preliminary review of constitutionality which may lead to sending back the law to Parliament for further consideration.

It is a difficult power to exercise when the Bill in question is produced and taken through Parliament by the very same Government which the President presides over when he is also the Head of Government.

Moreover, the President in a classic parliamentary democracy has an additional inherent power; the power of admonition.  Simply put, he is required to speak up and speak out when he sees something going wrong not at the policy or political levels, but rather at the institutional level.  This may include problems with the judiciary, Parliament or Cabinet.  The judiciary is barred from making such pronouncements, and if coming from any other institutions such pronouncement would be politically tainted.  More importantly, in times of crises the powers of the President expand to address the emergency of the time through other organs of State.  In terms of section 84[1] the Head of State has additional non-specified inherent powers. 

Q:        Will the President really be less beholden to the majority party?

A:        There are no guarantees, but only opportunities.  A President elected with the broader majority and charged with a dignitas and gravitas which calls on him to be above parties' politics may exercise a more independent role and not be a puppet of his party.  After he left office, President Mandela surely achieved this goal.  Furthermore, because he cannot be re-elected or hold other offices under the Republic, the President should be freer from the commands and dictates of those who elected him. 

Q         What happens if the National Assembly does not agree on a PM?

A.        The same as under the present Constitution: the previous PM serves until the next one takes office [prorogation].  If they want to get rid of the previous PM the members of the National Assembly must find consensus on a new PM. 

Q.        In real life, will the President of the majority party be the PM or the President?

A.        One cannot predict with certainty the future of politics, but it stands to reason that the President of the majority party would become the PM, as he is the one who governs the country. 

Q.        Why were Namibia and Mozambique not cited as examples of parliamentary democracies?

A.        Even though those two countries have a PM, the President is both Head of State and Head of Government and the PM merely assists and counsels the President in the conduct of government.