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Who the State Security Agency reports to should not depend on current roleplayers

Our intelligence services failed us catastrophically. The embarrassment of the utter incompetence of taxpayer-funded informers, agents and spies before and during July’s shocking week of shame was rivalled only by the clumsy subsequent blame game of their political bosses.

In anticipation of the Constitutional Court’s judgment on former president Jacob Zuma’s refusal to comply with its order to appear before the Zondo commission, the consequences of a possible prison sentence were the topic of wide speculation for months. In April I argued in this space that his refusal did not constitute a constitutional crisis, as some people contended. He is an ordinary citizen under the law. Intelligence agencies simply had to do their homework to anticipate criminal conduct by his supporters. They did not.

When President Cyril Ramaphosa moved the department of state security into the presidency, under a minister who enjoyed his confidence, some analysts were elated. After all, this president is trying to get rid of the rot of the Zuma era. We trust him. Others saw the spectre of an imperial presidency, reminiscent of “Groot Krokodil” PW Botha’s State Security Council. And, according to a recent public opinion poll, Ramaphosa is no longer trusted that much anyhow.

How much power should the head of state have in a constitutional democracy? The considerable powers of our president might well have been influenced by the fact that the internationally and nationally revered Nelson Rolihlahla Mandela was in office when the constitution was drafted. To question critically the power about to be given to him was regarded as disrespectful, almost blasphemous. He would never abuse power for personal gain. His legal adviser, Nicholas Haysom, arrived at critical points when clauses dealing with the president were drafted. As to the future, Essop Pahad was mostly nearby on guard for deputy president Thabo Mbeki. Aside from apartheid propaganda, there was no reason to distrust Mbeki either.

However, the rules for soccer must not be designed for the striker or the goalkeeper, but for everyone. The drafters of the cricket rulebook should not know whether they are going to bowl or bat. Philosopher John Rawls regarded a “veil of ignorance” as necessary for fairness. And, an important principle of organisational design dictates that structures must be designed around functions, not people.

This is easier said than done. When the constitution was drafted everyone knew that Mandela was president and the ANC likely to be the majority party for quite some time. Court cases about presidential powers are not brought and decided as an abstract theoretical exercise. They mostly arise out of disputes or uncertainty, during the time in office of a specific president. In the arguments presented by counsel, sometimes representing political parties or interest groups, the incumbents and their adversaries are invisibly but tangibly present. Four matters come to mind in which Constitutional Court judges had to remind themselves that not the current president, but all unknown future presidents, are under scrutiny.

Early in its existence the court had to decide on the constitutional validity of a proclamation of Mandela regarding medicines. In spite of his iconic image, the proclamation was declared invalid. Mandela contributed immeasurably to our constitutional democracy by accepting the judgment.

When the court had to decide on Mbeki’s dismissal of spy boss Billy Masetlha, the emergence of Mbeki and Zuma factions in the governing party was already clear. A president must be able to trust their intelligence chief. But the court had to determine which standards applied to executive action and an employment relationship of this kind — the rules and procedures regarding unfair dismissal in labour law, civil service regulations, or rationality — not for this situation, but for all later ones.

In 2011 Zuma decided to extend the term of office of Chief Justice Sandile Ngcobo. An Act of Parliament gave him the power to do so. However, the constitution stipulates the term of office of Constitutional Court judges “except where an Act of Parliament extends” it.  Parliament passed its responsibility on to the president. Thus the Act was obviously constitutionally invalid. 

Absolute power? President Cyril Ramaphosa (centre) announced last month that the department of state security will be moved into the presidency. (GCIS)

However, it was not easy to consider the matter completely removed from the incumbent president and chief justice, a colleague after all. Few if any people had a problem with how the chief justice performed his duties. The mere fact that the president explained his decision by stating how well Ngcobo had performed underlined the dangers of that power being vested in the president. Should a future president be able to justify a decision not to extend the term by mentioning all the actions of the chief justice and the court that displeased the president or government? Surely not.

When Constitutional Court judges requested the Judicial Service Commission to investigate the conduct of Western Cape Judge President John Hlophe, he successfully sued them in the Johannesburg high court. The Supreme Court of Appeal overturned the decision. Hlope tried to appeal to the Constitutional Court. Several of the judges who reported him were still members. Hlophe wanted the court to grant leave to appeal; those judges to recuse themselves; and the president to appoint acting judges for his case.  

According to the constitution, an acting judge is appointed when a position is vacant or a judge is “absent”. Much larger than the obvious immediate tensions involved, was the question whether any president should be able to appoint acting judges for a specific case. Imagine, for example, judges who wrote on freedom of expression recusing themselves from litigation between the president and a cartoonist, so that acting judges can be appointed for that case.

Of course we must learn from instances of corruption or power abuse. However, neither trust nor distrust in any individual president should determine the power of the office. Concerned NGOs lobbied to vest the statutory power to make senior appointments in the National Prosecuting Authority in the national director of public prosecutions, instead of the president. Zuma’s perceived corrupt manipulation of the office loomed large and motivated the sentiment. But why should we trust a future power-hungry, empire-building official any more than a future president?

Whether national security should be located inside or outside the presidency must be considered based on functionality and constitutional values, not present role players. But, Zuma allegedly corrupted departments and institutions far outside the presidency … simply by appointing corrupt ministers and heads.

Sound structural design, a much-admired constitution and strict laws cannot fully protect us. The preciously scarce commodity of integrity is essential.

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Johann van der Westhuizen
Johann van der Westhuizen, who assisted in drafting South Africa’s constitution, is a retired justice of the Constitutional Court, the founding director of the University of Pretoria’s Centre for Human Rights and a former inspecting judge of Correctional Services. The views expressed are his own

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