In a weekend newspaper the argument was made that the Minister of Defence, Lindiwe Sisulu, had every right to boycott the Standing Committee on Public Accounts (Scopa), and that she could not be summonsed by Scopa to appear before it. This was, according to the writer, because all the provisions of the Constitution (including those that state explicitly state that cabinet ministers are accountable to Parliament and that Parliament can force anyone to appear before it) had to be read holistically against the background of chapter 3 of the Constitution.
Unfortunately this argument is clearly wrong-headed as it completely misconstrues the nature of the co-operative government provisions set out in chapter 3 of the Constitution.
Co-operative government is often referred to by members of the executive or other role players in order to justify interference with the work of independent bodies like the IEC or the NPA or in order to escape accountability and scrutiny. It is as if these provisions only apply to others and not to themselves (a bit like a King or Queen – or perhaps even a princess – of old who could say: “the law only applies to my enemies”). The Ginwala Inquiry made much of the fact that the NPA was an organ of state that was bound by the provisions of chapter 3 and therefore that the NPA had a constitutional duty to co-operate with the President and hence to obey his request not to arrest Jackie Selebi, completely missing the point that the President was also bound by the same provisions and was required to co-operate with the NPA.
(By the way, why has no journalist contacted former President Thabo Mbeki to ask him why on earth he defended Selebi so vigorously, why he wanted to stop his arrest at all cost, and whether he now regretted this, given the fact that Selebi has now been made the laughing stock of the nation after his hilarious cross-examination by the state?)
In any case, the sections in the Constitution on co-operative government are important as it influences the nature of intergovernmental relations in our democracy and ensures that the unitary character of our state is not threatened while it safeguards the rights of the various spheres of government. Sadly these sections are often misunderstood and are also sometimes abused by those who wish to make some or other political point. It might therefore be helpful to reflect on the nature of our system of co-operative government. Those who invoke the concept do not always realise that it applies equally to all role players.
Section 40 of the Constitution states that the government is constituted of national, provincial and local spheres that are “distinctive, interdependent and interrelated”. This means that different spheres of government (national, provincial and local) have distinctive powers and tasks but that they are required to work together in fulfilling their tasks because they are all part of the same unitary state. It does not mean they have to agree with each other or that institutions or individuals in one sphere with distinctive and exclusive powers have a duty to obey instructions from institutions or individuals in another sphere. A national Minister cannot order the mayor of a City to ensure that the road in front of her house is repaved, nor can she instruct the Premier of a Province not to close a specific hospital.
Section 41 states that all spheres of government and all organs of state within each sphere of government must, inter alia: respect the constitutional status, institutions, powers and functions of government in the other spheres… and co-operate with one another in mutual trust and good faith by: fostering friendly relations; assisting and supporting one another; informing one another of, and consulting one another on, matters of common interest; co-ordinating their actions and legislation with one another; adhering to agreed procedures; and avoiding legal proceedings against one another.
This means that each of the role players must do its work diligently and in accordance with the Constitution and the law and should not connive to undermine the other institution or individual who are doing their job. Where a dispute arises, the parties should try and sort it out and should not run to the courts without first trying to find an amicable solution in the spirit of co-operation.
In the case of Minister Sisulu, this means that Scopa should diligently and in accordance with the Constitution play its oversight role by holding Ministers politically accountable for the spending of money in their departments. This would often mean that Ministers will be invited to appear before them to provide information, answer questions and take political responsibility (along with some political heat) for what happens in their departments.
This is at the heart of the various provisions that provide for Parlaimentary oversight over the executive. As part of the system of checks and balances, Parliamentary Committees are empowerd by the Constitution to give members of the executive a hard time and even to embarrass them politically – it is all part of the system of separation of powers.
The Minister in turn has a Constitutional duty to account to Scopa and will have to appear and will have to account politically for the spending of money in her department. She cannot avoid this by refering to the provisions of co-operative government as these provisions do not water down the powers and functions of each distinct entity – it merely requires them to try and sort out their differences amicably.
Where the Minister refuses to assist Scopa in the exercise of its constitutionally mandated oversight function and where she refuses to be held accountable by Scopa, she is indeed in breach of the provisions of Chapter 3 as well as several other provisions of the Constitution that requires her to account to Parliament. Even then, Scopa must try and resolve this outrageous breach of the Constitution amicably. However, if the Minister point blank refuses to appear before Scopa, despite being legally and constitutionally required to do so, Scopa as a last resort has every right to summons the Minister. Nothing in chapter 3 of the Constitution prohibits this. It is rather peculiar, to say the least, that one would argue that the Minister would be able to rely on chapter 3 of the Constitution to justify her unconstitutional behaviour.
The problem with many people’s understanding of the co-operative government provisions in the Constitution is that they fail to grasp that every sphere of government and every organ of state have a duty to do what they are legally mandated to do and all others have a duty to respect this. The provisions of chapter 3 do not allow one sphere of government to act unconstitiutionally or to try and interfere with the constitutional duties of another.
Where, say, the NPA fulfils its duty to prosecute without fear, favour or prejudice – as Vusi Pikoli did with the issuing of an arrest warrant for Jackie Selebi – then the other spheres of government (including the President) has a duty to support him in this. If there is some disagreement about how this needs to be done, the parties must meet and discuss this and must try and find a solution (as Pikoli did with the Selebi fiasco), but because their roles are distinct, the one cannot tell the other how to do its job. That is why the letter wrtitten by Menzi Simelane and signed by the then Justice Minister ordering the NPA not to arrest Selebi was exhibit A in the case against Simelane who might very well have breached the NPA Act for which he could have been sentenced to 10 years in prison.
Co-operation does not mean usurpation. Neither can it mean that some organs of state will be allowed to abuse their powers to frustrate others from doing what they are constitutionally required to do. It thus means that a good-will effort must be made by all concerned to exercise their functions in a manner that is going to be in harmony with the exercise of other functions. Where this seems utterly impossible after good faith efforts have been made, well, see you in Court Minister Princess.
well look at what the Princess is planning:
http://www.sowetan.co.za/News/Article.aspx?id=1138226
Prof, would this pass constitutional muster? Surely the government cannot force people to do National Service?
George, the proposed national service is not compulsory so hence I cannot see anything wrong with it from a constitutional perspective. If people were forced to do service and also forced to do it in a military setting, it might well be constitutionally problematic. But laws forcing citizens to do some kind of community service will probably not be unconstitutional – as long as it allows for religious and other beliefs to be accommodated.
“(By the way, why has no journalist contacted former President Thabo Mbeki to ask him why on earth he defended Selebi so vigorously, why he wanted to stop his arrest at all cost, and whether he now regretted this, given the fact that Selebi has now been made the laughing stock of the nation after his hilarious cross-examination by the state?)”
Because, after listening to Selebi describing how he hated the DSO (Scorpions), they’ve all realized that Mbeki was quite justified not to further inflame a volatile situation (as he always maintained he was doing). Something which you still seem to miss despite all the evidence to the contrary, including the clear conflict between all levels of the security services such as national intelligence, the police, the army, etc, that has since been revealed to have been occurring at the time. In any event, after listening to Selebi and reading the comments made by Mbeki at the time, they probably did try (as is typical of the largely anti-Mbeki RSA press) to produce stories using Selebi’s testimony in order to use the opportunity to discredit Mbeki and they would have unfortunately realized that Mbeki did not “on earth” defend Selebi, and therefore fearing a defamation suite (not a typical course of action with press freedom tolerant Mbeki) would have decided to wait for the next AIDS Day “celebrations” to falsely discredit Mbeki.
I cannot help it but wonder what explanation did Selebi give to Mbeki then, that led to him asking the church leaders to trust him?
Sometimes you just wonder who else was around when this happened?
Ours is a story of missed opportunities.
Recently saw a book, “50 people who buggered up Britain”, I see us having a plus minus 200.
“Voluntary” National Service is a contradiction…
Pierre, regards my earlier comment, find herewith further substantiation per Selebi’s defence witness (a former scorpion):
http://www.timeslive.co.za/local/article432843.ece/Selebi-victim-of-Scorpions–Court-hears
Could be lies, could be the truth, nonetheless the situation was clearly volatile and Pikoli wholly irresponsible to insist on his one week. Thanks God Mbeki insisted and we did not have running battles between the SAPS, Scorpions, Army, and NIA, like the ones that occured between the SAPS and Joburg Metro!
interesting
@ vuyo
So, do I understand you correctly that Mbeki, in your view, chose the correct course of action because we’d have had our security services at each others’ throats? Is that really the reasoning? In my words, that means that we try and pacify the children with their different toys and gangs (cops, Army, NIA…) and we keep this moron Selebi in charge so they don’t fight? And we do this while the population and their children are being traumatised through crime experiences?
How twisted a logic would we need to be willing to accept to continue talking of this Mbeki as ‘leading’ anything? Conflict avoidance is his claim to fame? Did I understand what you’re saying correctly?
This wasn’t a dream deferred my friend. It was a dream squandered.
pekkil monta says:
May 4, 2010 at 17:17 pm
No. Mbeki proffered a specific explanation for the suspension of Pikoli in respect of Selebi’s impending arrest. Prior to that, he exercised caution when all and sundry were urging Selebi’s arrest (long before even the NPA was confident enough to procure his court presence via warrant of arrest). Pierre criticized (the opposition, some in the Tripartite “Alliance” and “independent” analysts questioned Mbeki’s motives, suggesting he was protecting a friend (interestingly, without any substantiation is to why he was considered by them a “friend” or why he would be protected when other individuals known as his friends, such as Billy Masetla, had never been granted protection). All I’m saying, in response to Pierre’s continued suggesting/insinuation that Mbeki was protecting Selebi, is that the subsequent facts show that Mbeki’s explanation and caution (which he couched mostly on the basis of national security concerns) have a rational basis and are plausible.
….(cont) as opposed to Pierre’s, DA’s, Media’s, Pikoli’s, Nzimande’s, etc, conspiracy theory about some close friendship between Mbeki and Selebi that motivated his decision to suspend Pikoli. Incidentally, the proponents of a conspiracy theory do not explain why Selebi was still arrested shortly after Pikoli’s suspension if the intent was to protect Selebi….
Vuyo says:
May 4, 2010 at 17:35 pm
If I understand you correctly, the Mbeki strategy “to protect South Africans” was to neutralise the “good guy” and keep the “bad guy”?
What would have happened if Mbeki suspended Selebi, pending a full investigation?
Consider if you will that even in the aftermath of the dastardly killing of Chris Hani and the firing of Zuma the sky did not fall on our heads.
…..just to add on Vuyo’s comments, I’ve also wondered what would have happened if Pikoli had simply acceded to the request for an extra week?
Did Pikoli really think that Selebi would use that opportunity to skip the country?
Lest we forget, Mbeki never STOPPED Pikoli on his plan, all he did was to ask for an additional week, which the stubborn Pikoli refused to agree to.
I can’t agree with Vuyo. Who are you man? Do you realize that in 1996, at the International Convention on HIV-Aids, at Guelph in Canada, that it was announced that a drug cocktail for the successful extension of life for those who suffer from HIV-Aids was available and proving successful, a treatment that would allow sufferers to survive in relative health. How many have died of HIV-Aids since 1996 in the Republic of South Africa. And for that matter, how many have died, been tortured, been forced to abandon their homes in the hell that is Zimbabwe.
Do you recall that Mibeki refused international help in the Sudan, that he blocked it, that he also supported, even though a false and corrupted evil leader, the continuation of Mad Bob.
Vuyo my man; you need help. You are seriously ignorant. Should you have no interest in opposition to your archaic beliefs, then consider your sou’s welfare.
Correction: Soul’s welfare, final sentence.
Mzo and Vuyo, first, Pikoli DID offer to wait one week. He just did not want to wait two weeks. Then the Minister instructed him (illegally) not to continue. Why? Second, the argument about this seems fishy. At the time Mbeki denied that his suspension of Pikoli had anything to do with the imminent arrest of Selebi and he maintained this denial until after the Ginwala report came out then suddenly changed his tune and said that it was all about national security. So he was either lying at the time when he suspended Pikoli or he lied later when he said that it was all about national security. If national security was really the reason, why did he not say so at the time? Any answers? And why did Mbeki maintain that there was no evidence that Selebi was crooked when there was and when he had been given this information? This seems rather peculiar.
Prof, you are missing my point. Mbeki requested 2 weeks and Pikoli insisted on 1 week, so the issue really was the one additional week. Question is, what would have changed if Pikoli had simply agreed to that one additional week and give the President of the country a benefit of a doubt?
In any event, whatever the answers are to your questions might be, they still won’t answer Vuyo’s question: on what basis can anyone suggest that Mbeki was protecting a “friend”? On what basis was Selebi considered Mbeki’s friend?
I just wonder what Mbeki wanted to do in two weeks that he couldn’t do in one week. Did he perhaps need more time to get rid of Pikoli before the arrest?
Based on Mbeki’s reluctance to explain his decisions and thinking until today, I find it difficult to either accept or reject the explanations that are provided by all. Simulataneously, it is strange that others are arguing with almost authority on these matters when the man himself avoided every opportunity to reach out to us except by using the likes of Chikane, Simelane et al.
Selebi’s then command of our forces is also exaggerated, in any case he did excercise what was at his disposal and all he achieved was to arrest Nel for a day.
In my opinion Selebi was never a Mbeki”Friend” but a useful ally en route to Polokwane.
Today we know that half thruths did come out of the highest office in past. Why should we then beleive everything they said then?
Chris says:
May 5, 2010 at 10:20 am
“I just wonder what Mbeki wanted to do in two weeks that he couldn’t do in one week. Did he perhaps need more time to get rid of Pikoli before the arrest?”
The Ginwala Commission had some interesting comments.
“354 Adv Pikoli also did not give due consideration to the actions the President might need to take in order to defuse a potential security crisis and instability and to preserve the country’s international reputation. He did not take seriously the President’s concerns about the mood of the SAPS and their possible reaction to the arrest of the National Commissioner; and even challenged the President’s assessment of the time he would require to manage the situation.
355 The Head of State is inevitably privy to information that is not available to others, and it was incumbent on Adv Pikoli to respect the President’s assessment of the time that would be necessary; the more so as Adv Pikoli admitted that the request did not undermine his prosecutorial independence in any way.
Even more disturbing was Adv Pikoli’s response to the question on whether he would have acquiesced to the request if the President had insisted on a two week delay. Adv. Pikoli said: “I am saying I am very reluctant to answer this question, but if I have to answer it, I must say that perhaps I might have defied the president but I was just hoping that such a thing would never happen.”
356 This is most startling, particularly if he would have still been in a position to execute the warrants after the two weeks. His judgment that the two weeks delay would have compromised the matters that were pending is not supported, even by the historical events. Those matters were ultimately addressed in court in November 2007 well beyond the two weeks period the President had requested.
357 Had these facts been presented as the reason for the suspension, when the conduct would have held a real risk of undermining national security, I would not have hesitated to find the reason to be legitimate. However, these were not the reasons put forward by Government.”
Gwebecimele says:
May 5, 2010 at 10:25 am
“In my opinion Selebi was never a Mbeki”Friend” but a useful ally en route to Polokwane.”
It takes more than an ally to share the size of shoes and shape of feet with.
Her Royal Highness’s arrogance knows no bounds…
http://www.eyewitnessnews.co.za/articleprog.aspx?id=38803
Well, these are the facts: Mbeki wanted Pikoli not to continue with the arrest of Selebi. When Pikoli said ok you have one week to sort things out (after already having been informed of the situation months ago) Mbeki suspended Pikoli. At the time, he claimed this had nothing to do with Selebi. He also claimed that he had not seen any evidence of wrongdoing on the part of Selebi (despite having been fully briefed on this, the same information used by an independent panel later to decide that Selebi should be prosecuted). This all happened shortly before Polokwane. After Pikoli’s suspension I bumped into someone I know who used to work in the presidency and when I asked him about the suspension he smiled and said: “Wait and see, Nkosozana Zuma will be our new President and Mbeki will be victorious at Polokwane – this is all part of his plan.” So why did Mbeki maintain there was no evidence against Selebi when there was? Why did he say that the suspension of Pikoli had nothing to do with Selebi? Why did he need two weeks when he already had months and was given another week to manage the so called anger of the police? And in any event, how would it have made any difference to the alleged anger of the police whether the arrest happened within one or two weeks. Lastly, Selebi was finally arrested and charged but only AFTER POLOKWANE. Thus, if one is doubtful about the view that this was a national security issue and suspects Polokwane might have had something to do with it, the fact that Selebi was eventually arrested and charged after Polokwane makes perfect sense and in no way contradicts the evidence. No one has, however, answered the questions I pose above. Those who defend Mbeki might want to answer those questions and the onus seems to be on them in the light of the fact that MBEKI HIMSELF did not claim at the time that the arrest of Selebi was the reason for Pikoli’s suspension AND claimed at the time that there was no case against the guy who had bought him a pair of shoes (with or without the assistance of Glen Agliotti)..
Just to stir things a little, from a philosophical point of view…
The basic problem is that many in the ruling party (and I am not claiming that other parties would be exempt if they were in power) do not actually recognise the Constituton, and the law as being above them, and constraining their actions. The highest authority, in the minds of many is themselves (or the Party). Where their wishes can be met while adhering to the law, this is done. But where the law “bites”, it is overridden, ignored or circumvented. The examples are too numerous to list here.
But actually, I contend that this is but a symptom of a deeper problem that afflicts our whole society. Modern man does not see fit to recognise any authority above itself, morally or “legally”. Theefore, our Constitution’s Preamble can ask God to “bless” us, but an explicit decision was taken to remove the phrase “in humble submission to Almighty God” from that same Preamble.
At the time, FW de Klerk was challenged about his support of this contradicting his supposed Christian values and beliefs, and his answer was that he left his Bible at the door of Parliament. In other words, even he did not recognise any higher authority. Now, recognising the supremacy of God does NOT imply a theocracy or, worse, an ecclesiocracy (my word).
But outside of the Constitutional arena, most of us live as if there is no higher moral truth, or absolute morality or authority.
Maybe, just maybe, this is actually the root of the problem.
Will someone explain what this means :
“179 (6) The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.”
Maggs Naidu says:
May 5, 2010 at 13:22 pm
Final responsibility refers to the NDPP’s responsibility to account to the Minister. It does not mean that the Minister may interfere in the way the NDPP or DPP excecute his duties. The DPP is totally independent as far as his/her mandate to prosecute is concerned. The NDPP must be an independent, non-political entity. The functions of the DPP’s office do not fit into the political functions of the Minister. You will notice that the word “control” is not used.
Everyone will not agree with this view. Menzi Simelani will probably go with the view of Johnny de Lange who said the Minister is teh champion NDPP.
Cabinet Ministers retain their membership of Parliament. How can it be acceptable that a person who is caught in the dual bind of being concurrently a member of the Executive and Legislature refuses to abide by the lawful actions of SCOPA?
Also, I’m still waiting on a article from Pierre on the recent DA SCOPA abuse in relation to the misappropriation of over R2m in a Golden Handshake to the former Head of Education, Swartz, in order that Zille could deploy a DA cadre. It would be lovely to restore some balance here.
Chris says:
May 5, 2010 at 13:52 pm
Thanks Chris.
It sure sounds like it’s not definitive – almost as though that was deliberately intended.
Consider that clause against the independence of the Chapter 9 institutions which is very clearly stated :
“2) These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.
(3) Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
(4) No person or organ of state may interfere with the functioning of these institutions.”
Maggs, the NPA Act clarifies. The NPA is not independent in the same manner as the judiciary because 9i) it must act in terms of a prosecution policy agreed to by the NDPP and the Minister and (ii) the Minister has final responsibility for the NPA. IN Act this is clarified by stating that the NDPP has a duty to inform the minister of what’s happening and he can request any information on any case which must then be provided. What he cannot do, as SCA made clear, is interfere in a specific case.
Pierre De Vos says:
May 5, 2010 at 15:15 pm
“What he cannot do, as SCA made clear, is interfere in a specific case.”
Maybe.
But as we have seen, where there’s a will there’s a way (as the saying goes).
Pierre, while we are on the topic of co-operative government could you please give us a refresher on the legal framework for the Government of National Unity since cooperation between the different political parties in government was an extension of the principle of cooperation between different branches and spheres of government?
The incident Vuyo reminded us of – the SAPS and the JHB Metro involved in a shoot-out on the M1 – boggles the mind. No-one is charged with sedition, attempted murder, public violence, firing shots in a built-up area, pointing a fire-arm, obstructing traffic, illegal parking…. Nothing. No-one is found unfit to possess a fire-arm.
Typical ANC misrule, by the numbers.
Does anyone want to hazard a guess about departmental disciplinary action against those Mbeki supposedly feared would take the news of Selebi’s arrest badly?
Does anyone know if Selebi was threatening another coup d’etat? Effectively, Selebi and Nqakula were guilty of a coup d’etat when they refused to pay compensation for surrendered firearms as required in S137 of the FCA….
What about Mbeki’s responsibilities i.t.o S198 – 210, particularly 199(5) and (7)?
What a joke he was – both as a leader and as a manager!
Such an acute grasp of all the realities confronting this country and could not bring himself to do a damn thing about them.