Since she was sacked, former deputy minister of health Nozizwe Madlala-Routledge has received unprecedented support. This reflects respect for her work in the health portfolio and serious concern about the manner in which the president exercised executive power when he fired her.
Thabo Mbeki’s spokespersons assert that the Constitution permits the president to hire and fire ministers. But when exercising this power, he is not above the law. He is not a king or queen — he is bound by our Constitution.
In recent years, the courts have held that the exercise of executive power must be done in a manner that protects the rights of the other party, and be rational and for a legitimate purpose.
In the past few days, everyone seems to have forgotten about section 195 of the Constitution, which sets out the basic principles that should govern politicians. It states that public officials have a duty to promote and maintain a high standard of professional ethics, to be accountable, transparent and to respond to people’s needs. All politicians must provide the public with ”timely, accessible and accurate information”.
Is this not what Madlala-Routledge did at Frere Hospital, and on other occasions? In the light of this many people believe that her dismissal goes against the spirit of the Constitution (and possibly its letter) as well as the long-standing traditions and values of the ANC.
The president also explains the dismissal on the basis that the former deputy minister was not a ”team player”. But what is a team player, and who is the team?
The president might mean that the team is the department of health, headed by the minister. But according to the Constitution, all public officials are part of the team and the rules do not change from department to department. Further, neither the president nor the minister can make up the ”rules”. This is done by the Constitution. The field is the terrain of each specific minister’s responsibility.
Viewed this way it would seem that, if anyone, it is Minister Manto Tshabalala-Msimang, not her erstwhile deputy, who has ridden roughshod over the rules. She is alleged to have undermined the former deputy minister at every opportunity.
The minister’s conduct can also be measured accurately against the Constitution. Despite several Constitutional Court findings against her, she has remained part of the team. Indeed, she is the quintessential ”team player”. Despite a constitutional injunction to promote and progressively expand access to healthcare services, the minister is still holding up the scaling up of ARV treatment by refusing provinces the authority to accredit ARV sites. And she remains uncensored for brazenly promoting the right to choose untested substances over proven medicines.
One would have thought that the minister’s actions were contrary to the Executive Members Ethics Act and Code, which aims to prevent public officials from ”acting in a way that may compromise the credibility or integrity of their office or of the government”. But it would seem instead that these actions reflect the views of the team.
In contrast, Madlala-Routledge’s visit to Frere Hospital involved exactly what the Constitution requires — honesty, openness and an encouragement of public participation in policy-making. Therefore, she has been wrongly sanctioned.
The depth of South Africa’s health crisis requires action, not silence or political loyalty. It is problematic that the minister does not see herself as accountable to the public nor to users of our health services. She also refuses to accept any responsibility for a failing public health service of which she has been at the helm for many years. She refuses to acknowledge or act decisively to end unacceptably high disparities between the public and private health sector, excessive infant mortality and substantially reduced life expectancy because of HIV/Aids. She has no real plan to deal with the massive human resource crisis.
Simply put, the minister has not done and is not doing her job properly or constitutionally. If anything, it is the conduct of the minister that falls foul of our Constitution. For this, she should have been dismissed, not Madlala-Routledge.
Fatima Hassan is a senior attorney at the Aids Law Project and convener of the Joint Civil Society Monitoring Forum. Mark Heywood is director, Aids Law Project