One of my most powerful insights during the height of the #feesmustfall protests was that the media has its own agenda and bias. Nuance, the sympathetic depiction of all sides, fair coverage of silent constituencies: these are all niceties in the hurly-burly of a reporting frenzy.
So with the axing of Nhlanhla Nene sending the media frenzy machine into full tilt, I wonder whether the squaring of President Jacob Zuma’s motivations for the axing of former finance minister Nene with the murkiness of SAA and the trillion-rand nuclear deal really tells the whole story. Part of me (perhaps a denialist part) is (desperately) hoping that behind this decision there is some rational, legitimate government purpose.
But understand this: The onus of justifying the reallocation of the finance portfolio rests squarely in Number One’s lap. More importantly, it is a constitutional responsibility. It is worrying that Zuma was prepared to offer the nation the flimsiest of reasons (a vague reference to deploying Nene to another strategic portfolio?) at a time when everything is so economically precarious. It is yet another example of the president acting outside the spirit and the letter of the constitutional frame that affords him his powers as head of state and head of the national executive.
I laughed wryly at the ANC’s mealy-mouthed reference to President Zuma exercising his “constitutional prerogative”. Prerogative is quite an old-fashioned word. Before 1994, heads of state in South Africa derived their powers from the so-called common law “prerogative powers”, in line with how heads of state functioned in Britain’s Westminster system. Not any more. As every first-year law student must learn, the ambit of the president’s powers are now constrained by the 1996 Constitution, in particular, section 84(2), which outlines the president’s role as head of state; and section 85(2), which outlines his role as head of the national executive. Head of state powers include pardoning offenders, appointing ambassadors and diplomatic representatives, assenting to and signing bills, and the like. Head of national executive powers include developing and implementing national policy, preparing and initiating legislation, coordinating the functions of state departments etc.
The distinction between these types of powers is significant because head of state powers are often (but not always) ceremonial in nature, involving the president giving his stamp of approval to decisions taken by others. When functioning as head of state the president acts alone. When functioning as head of the national executive, however, the president must act with the backing of Cabinet. The tricky thing about the selection, appointment and dismissal of Cabinet ministers and the assignment of ministerial portfolios is that while these are better understood as powers that the president takes as head of the national executive, the president usually takes these “intensely political” decisions alone.
But the political nature of this kind of decision does not immunise it from scrutiny. I have read at least one post wondering whether the axing of Nene qualifies as “administrative action”, which would bring it within the realm of review by the courts. This is a dead-end debate because (a) even if an action does not qualify as being “administrative” in nature, the rules of administrative law (as it has developed in decisions of the courts over the past 20 years) allow for such action to be reviewed by the courts on the basis of the “principle of legality” and (b) there are clear Constitutional Court precedents stating that executive action (ie the president functioning as either head of state or head of the national executive) is reviewable on the basis of legality.
In the case of President of the Republic of South Africa v South African Rugby Football Union (commonly known as Sarfu III), the Constitutional Court said the following regarding the president’s powers as head of state:
“The President is required to exercise the powers personally and any such exercise must be recorded in writing and signed; … the exercise of the powers must not infringe any provision of the Bill of Rights; the exercise of the powers is also clearly constrained by the principle of legality and, as is implicit in the Constitution, the President must act in good faith and must not misconstrue the powers.” (paragraph 148).
The principle of legality is shorthand for saying that a decision should not be arbitrary, it should be rationally related to the purpose for which the power was given. And why has the president been given powers to dismiss and appoint ministers? Fundamentally, to uphold, defend and respect the Constitution as the supreme law of the republic and “to promote the unity of the nation and that which will advance the republic” — this according to section 83 of the Constitution.
It is in the light of these constitutional foundations that President Zuma’s reasons for dismissing Nene are so insulting. As a nation we deserve an explanation that aids our understanding of the rational basis for this decision. We need to be persuaded that while it may be political, it is not arbitrary. Why axe Nene? Why now? Why does he fall while other incumbents of the ineptocracy remain standing?
That executive action is reviewable on the basis of the principle of legality means of course that Zuma’s decision could be taken to court for review. I doubt the wisdom, however, of dragging our judiciary into this mess and setting up some kind of constitutional crisis. From the perspective of citizens hungry for real leadership the answer can only lie in political action that demands of Zuma to lay his reasons on the table.