In a speech a few weeks ago, Deputy Chief Justice Dikgang Moseneke called for a review of executive power, which he referred to as an “uncanny concentration of power”. The gist of his critique was directed at the president’s significant powers of appointment, which, he remarked, are “not optimal for advancing the democratic project”.
The hallmark of good governance is an energetic executive that scrupulously operates under principles of legality and exercises political choices that are fine-tuned to the realities and needs of its society.
There is nothing unusual about our distribution of power or the appointment powers given to the president. But we do have divergent perceptions of whether that power is being exercised wisely and collaboratively, and whether appropriate personnel choices are being made.
From a comparative perspective, executive power under different constitutions ebbs and flows, depending on the chief executive. In some instances, it assumes imperial dimensions. Where there is illegality, judges need to call out and sanction political actors, which our courts have shown themselves capable of doing. There is a distinction between illegality and perceptions of unwise or improvident political choices.
Moseneke does not provide insight into which constitutional model he has in mind and by what comparative measure he finds an “uncanny” concentration of power. It would be helpful if we were given such a comparative reference point to substantiate how this concentration of power is peculiar before suggesting a dilution of executive power.
Truth be told, there are more constraints on the president’s powers of appointment and removal in South Africa – coupled with requirements to consult – than in most democratic constitutions. Additionally, our courts have imposed a unique requirement of legality and rationality in the way power is exercised, which acts as a further fetter on executive power, and again one not found in other constitutional systems. One is left with the distinct impression that Moseneke’s real concern is with the political choices and appointments made by the current president, Jacob Zuma.
There are those who say that he is a toxic emperor appointing misfits, incompetents and flunkies to staff important positions. It is one thing for the opposition or the public to vent outrage at the way politics is being played, but this is not terrain for the judiciary to traverse. As United States Chief Justice John Roberts remarked in a healthcare decision: “It is not our job to protect the people from the consequences of their political choices.”
Similarly, our judges are ill advised to join the political fray, let alone suggesting using a wrecking ball on the constitutional distribution of power because the political outcomes or executive choices are not to their liking.
Judges have a right to articulate their views on constitutional reforms. It is a problem, though, when the criticism is garbed as constitutional reform but is poorly substantiated in terms of jurisprudence. Moseneke’s call is really for an upending of certain political choices by taking away the locus of decision-making from the democratically elected organs of government because the substantive outcomes are not palatable.
What would our response be if the legislature and executive complained because our judiciary, unlike any other judiciary in the world, imposes onerous obligations on the government? Would we not be outraged if the legislature advocated the constitutional constraint of judicial power?
Under the rationality principle, our courts have invalidated executive actions in a variety of settings. This would not occur in most constitutional democracies. For judges to suggest changing the power relationships in the Constitution because the political outcomes are not to their satisfaction is as illegitimate as politicians wanting to fetter the courts because they find judges’ decisions unpalatable.
If the executive is too robust and cavalier in the way it does things, in the absence of illegality the appropriate sanction must be made through the political process. The proclamation about “uncanny” power, or that our democratic project is not advanced by the current power configuration, is way out to sea.
Democracy is about empowering people and allowing them a voice in the selection of their leaders. In that democratic process, the legislature and executive are invested with the legitimacy that enables them to make political choices, as granted to them under the Constitution. If they betray their mandate, democracy instructs us that the sanction is through the ballot box.
Professor Ziyad Motala teaches law at Howard University in Washington, DC