As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Yesterday Secretary General of the ANC, Gwede Mantashe, announced that a review committee of the ANC will review the work done by Ministers annually and will fire Ministers if they do not perform adequately. The question is whether the ANC can actually fire Miisters and whether the Party (spelt with a capital letter with a reason!) is not usurping the power of the government with statements like this.
The easy answer is that the ANC can NOT fire MInisters in the cabinet. Only the President can appoint and fire members of the national cabinet. Even when such Ministers are drunk every day, say, or are found to have been convicted of stealing a patient’s watch, say, only the President has the constitutional power to fire that individual Minister.
We know that during ex-President Thabo Mbeki’s term it was almost impossible to get fired if one failed to do one’s job as a Minister or Deputy Minister. As long as one agreed with everything Mbeki said, told him all the time how cl;ever he was, and as long as one sucked up sufficiently to his Holiness, one’s job was safe. If, like Kader Asmalk, one was less respectful, that would be the end of that cushy job.
So, the principle behind the ANC’s statement is therefore not a bad one: Underperforming Ministers should be fired and more talented members of the National Assembly (of which there are many) should then be given the chance to try and perform the rather difficult task of getting the civil servants to do their jobs.
Moreover, constitutionally the ANC majority in the National Assembly is not without power regarding the composition of the cabinet. As part of our quasi-Westminster system, the National Assembly may adopt a vote of no confidence in the cabinet alone (not in the President) if a majority of its members have lost trust in some of the cabinet Ministers. The President will then remain in power but will be forced to reconstitute the cabinet and to align it with the wishes of the majority of members of the National Assembly.
So, if the ANC wanted to fire cabinet Ministers it would be able to ask the President to do this and if he refused would be able to use its majority in Parliament to fire the entire cabinet. Few President’s would want to go through such an embarrasing process, so if the ANC “asked” the President to fire certain cabinet Ministers he would probably have to oblige.
But the ANC really should be careful when it deals with these issues and should show more respect for the Constitution. It should not issue statements about how it would fire underperforming cabinet Ministers because such statements conflate the Party and the State – something that is not good for any democracy. A more circumspect attitude would do much to show that the ANC does not believe itself to be above the Constitution and respects the power of the President to appoint and fire members of his cabinet.
It is simple really: the ANC should leadership in Luthuli House should study the Constitution before it makes silly statements like this and should then couch their decisions in the language of the Constitution. Their failure to do so, suggests that the ANC sees itself as somehow above the Constitution and also conflates the Party and the State. Once again, a bit of Constitutional knowledge could go a long way to demonstrate a commitment to democracy. Pity there seem to be so few ANC leaders who know or understand the Constitution.BACK TO TOP