Minister Zwane’s unconvincing separation of powers defence

Politicians often invoke the concept of the separation of powers between the three branches of government when they are unhappy with being called to account. But remarks made in the National Assembly (NA) last week by Mineral Resources Minister, Mosebenzi Zwane, suggest that not all politicians have any understanding of what the concept entails.

When it emerged that the Minister of Mineral Resources, Mosebenzi Zwane, lied when he issued a statement two weeks ago, claiming that the Cabinet had resolved to ask President Jacob Zuma to establish a judicial inquiry into the banks and their actions against the Gupta family business, as well as into the legislation that governs the banking system, it immediately raised questions about how Minister Zwane could be held accountable for his dishonesty.

It was therefore not surprising when he was asked last week in the NA whether he would resign as Minister because he obviously lied to the public.

Minister Zwane responded that the members of the NA had no jurisdiction to ask him to resign as this process resided with the Cabinet, and not Parliament. According to the Minister:

[T]here’s a separation of powers and this matter – whether I resign or not – the matter belongs to the Cabinet. As a result, the honourable Maynier cannot ask me whether I’ll resign or not.

This is, of course, not entirely correct.

The term “separation of powers” does not appear in the Constitution. However, the Constitutional Court has recognised on many different occasions that the Constitution does create a system of separation of powers as it creates three distinct branches of government and provides for some degree of separation between them.

Although there is no absolute separation of personnel between the legislature and the executive (all but two of the cabinet Ministers and the President must remain members of the NA), there is a pronounced separation of function between these two branches. Of course, the judiciary is entirely separate from the other two branches of government – both in terms of its personnel and its functions.

This separation is not upheld for its own sake – the separation of powers is not a mythical ideal without any tangible function. Rather, the Constitution establishes this separation to enable the various branches of government to check the exercise of power by the other branches. One cannot credibly invoke the system of separation of powers without also invoking the concomitant system of checks and balances.

When politicians invoke the system of separation of powers they inadvertently also invite us to consider the ways in which the system of checks and balances limit their own power.

In South Africa, most voters have some understanding of the role that the courts play in this regard. Anyone who watched Chief Justice Mogoeng Mogoeng deliver the Constitutional Court judgment in the case which held that both the President and the NA had acted in breach of the Constitution when they attempted to exonerate the President of responsibility for the Nkandla scandal, will be aware of the Court’s power to check that the other branches of government comply with their constitutional duties.

But like Minister Zwane, some South Africans might not understand that the Constitution envisages a system in which the NA plays a pivotal role in holding the members of the executive accountable for the exercise of their powers.

The reason why the NA is supposed to play this pivotal role is – as section 42(3) of the Constitution points out – because the NA “is elected to represent the people and to ensure government by the people under the Constitution”. It establishes the fundamental democratic principle that the President and the cabinet are the servants of the people and are – through the NA – accountable to the people.

The NA as the democratic representative of all voters, is the most democratically legitimate branch of government which – in theory – has vast powers to hold the executive accountable on behalf of the people.

The NA elects the President from among its members. Once elected the President forms his or her cabinet (usually in consultation with leaders of his or her party).

But this is not the end of the matter. In terms of section 102(1) of the Constitution the NA has the power to remove the entire cabinet from office, which occurs when a simple majority of NA members support a motion of no confidence in the entire Cabinet excluding the President.

If this happens, the President must reconstitute the Cabinet. The NA could, in theory, tell the President that if one or more Ministers are included in a reconstituted cabinet, it would invoke section 102(2) to remove the President and the entire cabinet from office through a vote of no confidence. Once again, a simple majority of NA members is needed to ensure the removal of the President and his or her cabinet from office.

The NA is therefore empowered to have Minister Zwane removed from cabinet by passing a vote of no confidence in the entire cabinet and informing the President that a vote of no confidence in him and the cabinet will ensue if he reappoints Zwane as a Minister.

The appointment of Minister Zwane (and his possible removal for lying to the nation) is therefore not exclusively within the power of the President.

Section 102 is an extreme measure. Mostly an effective NA will hold the President and the cabinet accountable in other, less extreme, ways. First, section 55(2) requires the NA to provide for measures to ensure that all executive organs of state – in the national sphere of government including the cabinet – are accountable to it.

The drafters of the Constitution believed that this accountability is so important that it repeated a similar provision in section 92 of the Constitution, which states:

Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.

This means that cabinet members are all accountable to the NA for decisions taken by the cabinet as a whole. But they are also individually accountable to the NA for their actions or failures to act. When Minister Zwane lied to voters by issuing a false statement, he became accountable to the NA for peddling this lie.

One of the ways in which individual cabinet Ministers are held accountable is through NA rule 38, which allows MPs to pose questions to Ministers for oral answer. Although the NA rules are silent on what happens when the President or a cabinet Minister fails to answer a question or refuses to answer a question, the accountability mechanisms set out above make it clear that such a failure or refusal would be in breach of section 92(3) of the Constitution which requires cabinet members to “act in accordance with the Constitution.”

When a Minister (or the President) refuses to answer validly posed questions in the NA, he or she is in breach of his or her constitutional duty to account to the NA in terms of sections 55(2) and 92(3). A fair and impartial Speaker who upholds the Constitution would insist that Ministers and the President answer the questions validly posed to them, and do so to the best of their abilities. Such a Speaker will not accept it when a Minister or the President refuses to answer a validly posed question in the NA and thus refuses to comply with his or her constitutional obligations.

Minister Zwane and the Speaker are therefore both in breach of their constitutional duties: he for refusing to account to the NA, and she for failing to insist that Minister Zwane answer the question posed.

As the President is also a member of cabinet, he has a similar duty to account to the NA. In terms of NA rule 140, one way in which the President is legally obliged to account to the NA is to answer oral questions “at least once per quarter during session time within the annual programme”.

The President – like all other cabinet ministers – do not have a choice in the matter. Even if MPs are “abusive” (as President Zuma complained this week), it would not absolve the President from coming to the NA at least four times a year to answer questions.

Ultimately voters decide whether they support the alleged “abuse” of the President by opposition MPs. They do so either by voting for the party of the President at the next election, or by voting for one of the parties accused of “abusing” the President. One would think the higher the stature of the person who is serving as President and the more revered by the voters, the riskier it will be for the members of a political party to “abuse” the President during the oral question time.

But what happens if a Minister or the President refuses to account to the NA and refuses to appear before the NA? In terms of section 56 of the Constitution the NA or any of its committees may “summon any person to appear before it to give evidence on oath or affirmation, or to produce documents; require any person or institution to report to it; compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons”.

Section 14 to 17 of the Powers and Privileges Act prescribe the manner in which witnesses can be summoned before the NA. Like the Constitution, these sections make no distinction between the President and other Cabinet Ministers on the one hand and other witnesses on the other hand.

This suggests that in extreme cases where a cabinet Minister or President flout his or her constitutional obligation to account to the NA in an individual capacity, the President or Cabinet member can be summoned to appear and can be required to answer questions.

Section 17 of the Act states that a witness who is summoned to the NA and fails to attend without a sufficient cause or fails, without sufficient cause, “to answer fully and satisfactorily all questions lawfully put to him or her” commits an offence and is liable to a fine or to imprisonment for a period not exceeding 12 months or to both the fine and the imprisonment.

Of course, it is unlikely that the governing party will ever take this drastic step to hold members of its own party accountable. As the NA is the body that represents the will of the people, it is unlikely that a court will interfere and will order the NA to summons a Minister or the President to appear before it to answer questions. (The Constitutional Court is more likely to declare rulings of the Speaker unconstitutional if they are biased and/or if they flout the Constitution.)

But this is, once again, not the end of the matter.

Just as in the case with the “abuse” of a sitting President, voters ultimately decide whether they approve of the course of action taken by the governing party in the NA. If voters agree with the decision by the Minister and the Speaker to evade accountability to the democratically elected representatives of the people and with the governing party members in the NA to turn a blind eye, they may well vote for the governing party. If they disagree and believe that the NA should hold the executive accountable, they may consider changing their vote.

Ultimately, members of the executive and members of the NA are accountable to the voters of South Africa. It is therefore up to the voters to decide whether they will hold those in power accountable if they do not comply with their constitutional obligations to account to the people via the NA.

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