The Princess and the moon

One can learn a lot from reading the legal opinions provided to Ministers. This week I learnt a new word – longiloquent (meaning long-winded) – by reading a legal opinion provided to Lindiwe Sisulu, who is the Minister of Defence and is also known as The Princess.

I also learnt that when Ministers account to Parliament they are members of the executive fulfilling a constitutional function and that, when they do this, they are therefore not really “persons” bound by the Constitution at all. No wonder The Princess has been looking a bit otherworldly lately: according to her legal advisor, as Minister of Defence she has ceased being a person at all and has instead become some otherworldly creature who is not bound by the Constitution. (Sadly, the legal opinion is silent about whether the Minister only stops being a person when it is full moon or when she consults with her advisors.)

Wonderful stuff, this. I wonder if the legal advisor responsible for this fantastic piece of fiction has ever considered writing movie scripts for Hollywood. I suspect he or she (but probably “he” because the legal opinion is couched in the aggressive and haughty prose I associate with deeply wounded and angry men) would be great at writing movie scripts.

The legal opinion was written to justify the refusal of The Princess to account to Parliament as she is obliged to do in terms of the Constitution. The Defence Committee wants the Minister to produce two “interim reports” that she had commissioned about the state of the military. She has already acted on some of the recommendations contained in these reports, but for some bizarre reason (pride? something to hide?) she is refusing to provide the reports to the National Assembly committee.

Section 56 of the Constitution is pretty clear on this point as it states (in the wonderful plain language used throughout most of the Constitution) that the “National Assembly or any of its committees” may:

1. summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
2. require any person or institution to report to it;
3. compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b);

Section 55, read with section 92 of the Constitution, also makes clear that any Minister is accountable to the National Assembly and that the National Assembly has a constitutional duty to exercise oversight over the work of a Minister. Members of the cabinet are accountable to Parliament collectively (which means they are accountable for decisions taken by the cabinet as an institution) and individually (meaning they are accountable to Parliament for decisions and actions they have taken themselves) “for the exercise of their powers and the performance of their functions”.

So when the Minister makes a decision as the Minister – whether it is full moon or not – (say by commissioning a report or adjusting the pay scales of soldiers) or fulfils her duties (by reading the report and proposing ways of dealing with its recommendations), the Minister is accountable to Parliament for this. In order for the National Assembly to fulfil its accountability and oversight function, it can rely on section 56 to obtain any information from the Minister regarding the management of her portfolio.

The piece of fiction prepared by the Minister’s legal advisor holds differently though. The “legal opinion” argues that because the “interim reports” had not yet been considered by cabinet (although they had been considered by the Minister and acted upon by her) they do not concern matters under her control. So, not only is the Minister not a person when she is a Minister, she is also a creature that can act on a report which she herself has commissioned without that report being under her control or without her performing any function as a Minister.

This is a miracle!

Besides, the argument (such as it is) ignores the fact that the Minister is not only collectively accountable to Parliament, but also individually accountable for her actions. So, while the Minister is not accountable to Parliament when she acts in her personal capacity (by having her hair done, say, or attending a wedding), she is individually accountable for what happens in her department and for decisions taken by her as Minister. She consequently has a constitutional duty to provide the National Assembly with the information it requires to help it exercise its oversight over the Minister’s actions as an individual Minister. Whether the cabinet has considered the report on which the Minister has already acted is therefore completely irrelevant.

The piece of legal fiction masquerading as a legal opinion also states that section 56 of the Constitution (mentioned above):

does not mean that ministers may be forced to produce documents will-nilly (sic). Any portfolio committee foolish enough to issue a summons to a minister on a matter pending before cabinet or the executive will be met with an iron-clad claim of executive privilege. Generally speaking, ministers take an oath to respect confidentiality of certain matters serving before cabinet. Until a matter has been discussed by cabinet and government position has been formulated, cabinet deliberations and candid and confidential matters before cabinet cannot be disclosed to parliamentary committees or anyone else.

God forbid that Ministers must willy-nilly provide information to Parliament. What next – will Parliament actually demand that Ministers come and talk to it? What an outrage! Who do these bloody Parliamentarians think they are? One would not be surprised if they think we live in a democracy and that Ministers are not Royalty who are above the law!

I suspect the person who wrote this document might not have been trained in South Africa, hence his or her reliance on the American concept of “executive privilege”, which does not exist in our law and is not mentioned in our Constitution. (Dick Cheney loved executive privilege and often used it to try and stop the US Congress from holding him to account.) Details about discussions that occur in the cabinet are of course confidential and Ministers should not divulge what was discussed in cabinet. Once a decision is made by cabinet, Ministers must defend those decisions and should not divulge information about the discussions that led to the decision. If they cannot defend the cabinet decision, they should resign or shut up.

Reports commissioned by the Minister (and already acted on by her) are obviously not covered by this rule because a report is not a cabinet discussion. Cabinet considers reports and pieces of legislation all the time and most of these reports or draft Bills are in the public domain before they are discussed by cabinet. The reports are public, but the discussions about the reports in cabinet are not.

There is a difference – even when the reports were commissioned by a Minister who is not a person and even when it is not full moon. The Parliamentary Committee is not asking the Minister to divulge secrets about what happened at cabinet discussions. They are asking for reports (already leaked to newspapers) commissioned by the Minister and acted upon by her. Whether these  reports will later be tabled at cabinet is irrelevant.

The interpretation of the Minister’s legal advisor would thwart the very essence of accountable government as any Minister who wished to hide something from Parliament would merely say that a matter had not been discussed yet by cabinet so it was protected by “executive privilege”. So, a Minister might be asked whether he had stayed in five star hotels for six months and he would respond that the issue had not yet been discussed by the cabinet so he is not allowed to say whether he stayed there and what it might have cost if he did. This is so absurd that, once again, it is the kind of fiction that bad Hollywood movies are made of.

In the end the issues here are not very difficult – despite the longiloquence (ha, there, I have used the word!) of the Ministers legal advisor. There are reports. The Minister commissioned them. She then acted on some of the recommendations in the reports. Parliament is asking for copies as they are entitled to do by the Constitution. The Minister is refusing to give Parliament what it wanst and what it is constitutionally entitled to. The Minister, with the support of her legal advisor, is thus unlawfully refusing to provide the reports as she is required to do by the Constitution.

Now, I do wonder who this legal advisor of the Minister might be. He or she sure is entertaining and longiloquent. Pity about the fact that he or she shows such a disdain for the Constitution and for our democratically elected Parliament.

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