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.
We probably do not want to go back to the imperial Presidency of President Thabo Mbeki. In any case, as a matter of ANC and alliance politics it is probably impossible for our President to take on the dictatorial management style of Mbeki, who branded Cosatu as the ultra-left and tried to silence his critics outside the cabinet with threats and plots. Consultation and consensus is the name of the game as that is the only way to survive politically in the snake pit of tri-partite alliance politics.
One also does not want to find fault with everything our President does and one does not wish to be seen to try and tell President Zuma or his advisors what to do – that would be arrogant and patronising.
However, from a purely constitutional law perspective, the tension in the cabinet and between the ANC government and Cosatu about the role of former finance minister, Trevor Manuel, raises an important question: where is President Jacob Zuma and why is he not leading as he is empowered and required to do by the Constitution?
Judging not only from media reports but also from statements made by various alliance leaders, a clash is building up between the ANC and Cosatu about the powers held by Trevor Manuel, Minister in the Presidency, and Ebrahim Patel, Minister of Economic Development. Cosatu maintains that Manuel’s Green Paper on national planning makes him a “super-minister”, to whom Patel will be subordinate. At its Midrand conference Cosatu consequently launched a vicious attack on the former confidants of ex-President Thabo Mbeki.
Cosatu had, of course, called for a complete overhaul of the content of the National Planning Commission for a “vigorous” engagement on the alliance’s green paper. To ensure that there was no confusion, Cosatu general secretary Zwelinzima Vavi referred to the green paper as representing “a massive turf battle in cabinet”. He indicated that certain ministers – most notably Economic Development Minister Ebrahim Patel – were being sidelined while Manuel had been positioned at the centre of processes.
Even if one has regard for the intricacies of alliance politics, there seems to be no need for all this tension. The President has both the power and the duty to address the tension and to ensure that his cabinet operates optimally. (If Cosatu does not like this they can complain, but Cosatu has no constitutional powers to run the country.) It is time to lead. We should expect nothing less from our President whom a majority of voters have entrusted with the power to lead us. Now he should do exactly that and lead – as required by the voters and the Constitution.
President Zuma clearly wishes to lead in a more conciliatory and consensus-building style, which is a welcome departure from the previous nine years of Mbeki rule. But this does not mean our President does not have a duty to make difficult decisions once all the consulting has been done. When one is President one cannot please all the people all the time and if one tries to do that one will be perceived to be weak and ineffectual and it won’t be long before the vultures swoop and one will end up like former President Thabo Mbeki – with lots of time on your hands to write your memoirs.
Worse, the cabinet will not be able to do its work properly because of all the suspicion and infighting and ordinary people who have pinned their hopes on the government to provide a “better life for all” will suffer.
Of course, the President should not make the mistake to micromanage his cabinet. Helen Zille seems to have a tendency to do exactly that and in the Afrikaans press one hears the first rumblings from her provincial MEC’s about her dictatorial style. She seems not to have learnt anything from the Thabo Mbeki fiasco, but perhaps she is bargaining on the fact that the Democratic Alliance does not have the same kind of appetite for democracy and constestation as the ANC. (Or maybe, like Margareth Thatcher, she will also leave her job in tears one day, still unable to understand how her minions who had always feared – if not respected – her could have stabbed her in the back.)
In any case, section 92 of the Constitution states that the “Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President”. This means that ordinary executive powers not dealt with by legislation can and must be delegated by the President to his or her various Ministers.
Constitutionally the President has a very broad discretion to decide how his cabinet will operate, how many members must serve in the cabinet and exactly what each cabinet minister will be responsible for. The current tension about the role of the Planning Minister vis-à-vis the Economic Development Minister can – from a legal perspective – thus only be solved by the President.
This does not mean that he should not consult and discuss the difficult issues raised by Coastu and others, but the buck stops with him and at some point he will have to do what he is paid to do and what he was elected to do – lead and make decisions.
Even where legislation originally bestwowed powers on one minister, the President has the power to change this. Section 97 of the Constitution states that the President by proclamation may transfer to a member of the cabinet the adminsitration of any legislation entrusted to another cabinet member. He may also transfer to a member of the cabinet any other power or function entrusted by legislation to another member of the cabinet.
So, its is fine to travel the globe, to cut ribbons opening hospitals and schools and half built roads, to smile and laugh and tell jokes, to inspire us ordinary South Africans with nice warm-hearted stories and gestures, to threaten criminals with execution (well, maybe not that last one) and to meet with opposition parties, but in the end the buck stops with the President.
It is time for him to start making the difficult decisions as there are more important things in South Africa for a politician than being loved by all. There is a country to run, poverty to address, houses to build, children to feed and an economy to transform. Only the President has the constitutional power to guide this process via his cabinet. Gwede Mantashe might think this is up to him, but the Constitution is silent on the role of the Secretary General of the ANC in the running of the country. President Zuma is the elected leader, not Mantashe, and it is therefore Zuma who has the constitutional duty to lead.BACK TO TOP