Editorial: Don't tinker with the Constitution
Having criticised President Jacob Zuma’s wrong appointments, we won’t question powers accorded the president by the Constitution, even on the basis of his bad decisions. Last year, Constitutional Court Deputy Chief Justice Dikgang Moseneke expressed concern that the president’s constitutional powers of appointment were too wide; he said courts have had to adjudicate in challenges to several of his appointments. We may have “to revisit the dispersal of public power”.
But tinkering with the Constitution to remedy the faulty choices of an individual is not the solution.
We agree that the most dynamic Constitution is a flexible one, and ours offers ways to check the executive’s exercise of power if it goes too far. Limiting those powers, though, could paralyse a future president’s ability to govern.
We should instead make sure the constitutional safety valves are working, especially our electoral system, to ensure that the legislature (currently the weakest link) is structured so that MPs become the fiercest examiners of presidential powers. If our legislature effectively executed its constitutional mandate, the president’s power would be regulated accordingly. It has happened before, but for the wrong reasons.
In 2008, just after the ANC’s Polokwane conference, ANC MPs loyal to Jacob Zuma gave Thabo Mbeki’s Cabinet hell. For the first time, we experienced a real separation of powers – in this case, that of the executive and the legislature.
The president doesn’t derive his power from executive decree; his decisions can be reviewed by the courts. On several occasions, the courts overturned his decisions. An unlawful exercise of power on his part reflects a failure of the legislature, not necessarily a defect in the Constitution.
We agree with ANC treasurer general Zweli Mkhize, who argued against Moseneke that “the appointment of leading executives in institutions of government cannot be outsourced to individuals who have no mandate to manage government”. We have checks and balances.