No more dithering: a constitutional duty to make a decision

President Jacob Zuma has become known as a person who is far from eager to make decisions, especially if the decisions may have an effect on his political fortunes or when not making a decision appears to be politically expedient. Before the local government election, President Zuma failed to sign into law the Local Government: Municipal Systems Amendment Bill. The Bill – fiercely opposed by some Unions – was passed by Parliament on 19 April 2011 but was only signed into law by the President almost four months later, long after the unhappiness of Unions could have affected the electoral fortunes of the ANC at the local government polls.

More recently, the President has failed to act on recommendations by the Public Protector to take action against the Minister of Public Works, the National Police Commissioner and now the Minister of Cooperative Government and Traditional Affairs. The question is whether this seemingly inexplicable failure to deal in any way with some of the main recommendations of the Public Protector may be unconstitutional, whether the tardy inaction on the part of the President could be reviewed by the Constitutional Court and whether the President could be ordered to act on the recommendations of the Public Protector (which included recommendations to take action against these delinquent Ministers and the National Police Commissioner).

In terms of section 91(2) of the Constitution the “President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them” and in terms of section 207(1) the “President as head of the national executive must appoint a woman or a man as the National Commissioner of the police service” and – we know after the Mastehtla judgment – may also dismiss the National Commissioner if he and his cabinet have lost confidence in the Commissioner and after the correct procedure was followed.  

I would contend that the principle of the separation of powers would normally preclude a court from instructing the President to fire either of the Ministers involved in the various scandals investigated by the Public Protector. The principle would also normally preclude a court from ordering the President to fire the National Police Commissioner (who can in any case only be fired after a full investigation was done and after the prescribed procedure was followed). The appointment of Ministers to a cabinet as well as the appointment of a Police Commissioner are essentially political decisions and the President would have a very wide discretion to appoint (and also to fire) people from these positions as he sees fit.

This means that if the President announced tomorrow that he had full confidence in the abilities of the National Police Commissioner and the two Ministers involved and that he had decided not to act against them at all, it would be difficult (but perhaps not impossible) for a court to review and set aside the decision.

It is true that the President has a duty to respond to the recommendations of the Public Protector, as the Public Protector has the constitutionally conferred power in terms of section 182(1) to take remedial action when maladministration has occurred. Furthermore, in terms of the principle of legality the President has a duty to act rationally when he responds to the various reports of the Public Protector. In other words, the President has a constitutional duty to make a decision in each case that is rationally related to a legitimate governmental purpose. This means the exercise of the discretion cannot be arbitrary, capricious or clearly exercised in bad faith.  But this is not a very difficult requirement to meet.

Perhaps in the case of Minister Sicelo Shiceka, where the dishonesty and incompetence of the Minister is revealed in such stark terms by the Public protector’s report, the only rational thing to do would be to fire the Minister. Perhaps there could be no legitimate purpose in keeping on in the cabinet a colleague who has been demonstrated to be such a dishonest and incompetent person. But making such an argument would not be easy as a court would not easily interfere in what it would see as essentially the exercise of a political discretion by the President.

This also means that the other offenders could easily be saved if the President stated that he has decided to retain them as National Commissioner and as Minister of Public Works respectively because they enjoy his confidence and are needed to fulfil the mandate of the government, that they have learnt their lesson and are taking remedial steps to ensure better administration in the Police Service (these days wrongly and constitutionally imprecisely called a Police Force) and in the Department of Public Works and that they will be given a second chance in a practical demonstration of the principle of ubuntu.

But what happens if the President refuses to make a decision at all about how to respond to the recommendations of the Public Protector? What happens if, instead of announcing that he has either fired or retained the three implicated individuals, the President continues to refuse to make a decision at all, stating for the next year that he was “studying” the reports of the Public Protector and asking the public to be patient while he studies and re-studies every comma of those bloody reports? Would the refusal to act where there is a legal duty to act itself not be reviewable by a court of law?

The Constitutional Court has stated (in the context of the pardoning power conferred on the President by section 84 of the Constitution) that there is a positive obligation on the President to make a decision either to pardon or not to pardon a person who has applied for a pardon. A person applying for a pardon does not have a right to be pardoned but he or she does have a right to have a pardon application “considered and decided upon rationally, in good faith, in accordance with the principle of legality, diligently and without delay”. 

In other words, where a power is conferred on the President by the Constitution or by legislation, the President must exercise that power. As the Constitutional Court confirmed in the SARFU judgment, the President cannot abdicate this power. An “abdication” of the presidential power would occur when the President unlawfully delegates a power conferred upon him or her (for example, by asking the Deputy President to act on his behalf); when the President acts under dictation (by taking instructions from Gwede Mantashe or the Guptas instead of applying his own mind to the matter); where the President “passes the buck” (by referring the matter to the National Assembly, say, when he is the only one empowered to act on the recommendations); or where the President fails to act at all.

The question here is whether there is a legal duty on the President to act. I would contend that there is. Section 181(3) of the Constitution states that organs of state (which includes the President) “through legislative and other measures, must assist and protect …[the Public Protector]… to ensure [its] independence, impartiality, dignity and effectiveness”.

Where the President fails to respond at all to recommendations of the Public Protector, the President would not be fulfilling this positive constitutional obligation to take action to ensure the effectiveness and dignity of the institution. A decision to completely ignore some of the recommendations of the Public Protector would send a signal that the President is not taking that institution seriously and would invite others to disregard the authority of that institution. It may well be fatal to the effectiveness of the office of the Public Protector.

The Public Protector does not have the right to demand that the two Ministers and the National Commissioner be fired. Neither does she have a right to expect that the President will always comply with all her recommendations where some of these recommendations have political consequences. These decisions will have political dimensions and also political consequences, and even the Public Protector cannot issue a binding order to the President to fire any of these delinquents. But she does have a right to have her recommendations in this regard “considered and decided upon” by the President in a rational manner and in good faith – in accordance with the principle of legality. She also has a right to have this decision made in a diligent manner and without delay. 

Every day the President dithers and refuses to act diligently and without delay, the chances increase that he may be in breach of his constitutional duty to act and that he is flouting the principle of legality, which is an incidence of the Rule of Law. After all, how long can we reasonably expect our President to take to study these various reports which each took me about two hours to read? A day, a week, a month? Surely, after about two weeks of dithering any reasonable person will conclude that the President is in breach of his constitutional obligations.

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