3 July 2017

South Africa: Legislature and Governance - Towards Presidential Centralism

Photo: MYANC
President Jacob Zuma and Deputy President Cyril Ramaphosa (front), Nkosazana Dlamini-Zuma (left, back).
analysis

What's expected in a discussion document on legislature and governance for the upcoming African National Congress (ANC) policy conference is an identification of the challenges and pressures that threaten democracy and democratic governance in South Africa today; and then proposing tangible and realistic policy solutions to resolve these, through the relevant structures be it the national, provincial and local legislatures and executives.

Unfortunately, this requires the ability to decouple the ideals of building an effective and functioning democracy for the long term prosperity of South Africa on the one hand, from the power retention aspirations of a political party on the other.

While the ANC policy conference proposals from the 90's and 2000's as well as legislation enacted by the National Assembly, by and large achieved the former (such as the establishment of an independent Directorate of Special Operations outside of the Ministry of Police to effectively prosecute corruption), this set of policy documents leans towards the latter; with policy proposals, amongst others:

a) to form a strategic centralisation of power in the Presidency with core functions of "state policy and planning, resource allocation and prioritisation, cooperative governance, public administration and performance enforcement' (see pg. 10, recommendation 'ii' on Policy Recommendations on Macro Configuration;

b) to review provinces (see recommendation 'vii' on Macro configuration pg. 10) and,

c) for the ANC Chief Whip to be made the parliamentary Chief Whip (see recommendation 'vi' under recommendations on legislatures, Pg. 13).

Labouring the point, one expects a tension in the discussion document between the strengthening of democracy versus the strengthening of the state; because the strengthening of democracy, may well entail the weakening of a specific component of the state, for example the powers of the Executive, in favour of the strengthening of the legislatures and their oversight over the Executive.

However, it doesn't achieve this dynamic tension to build a better democracy, with more independent institutions and the strengthening of checks and balances that need to be built into a democratic system; but rather leans towards a more statist and centralised approach to governance.

As an example to illustrate this point, page 18 of the discussion document speaks to fighting corruption in the state and broader society with some introductory paragraphs, one of which states that "the lack of action or inaction by the ANC as a leader in society and parliament caused regression in eradicating the scourge of corruption in society".

This regression emerged from the exact institution that is proposed in the discussion document to be given a strategic centralisation of power to achieve a more capable state, i.e. The Presidency.

Further, the proposed solutions to dealing with corruption and this self-identified regression do not mention, anywhere in the discussion document:

the dire straits that the National Prosecuting Authority (NPA) finds itself in as the custodian of State Prosecutions with any reform measures such as taking the power to appoint the National Director of Public Prosecutions from the President and delegating that power to Parliament for example;

the analysis and review of the effectiveness of the merging of the Scorpions into the SAPS and the effectiveness as well as independence of the Hawks from political influence;

the term 'state capture' that is not used anywhere in the discussion document, even though the ANC NEC have resolved for government to establish a Commission of Enquiry in State capture; or

reforming the proportional representation system to make MP's and MPLs' accountable to the electorate and therefore giving them more autonomy in holding the Executive to account.

To be fair, the robust oversight of the Executives by the Legislatures is mentioned in the first paragraph of the heading legislatures on page 11. However, the policy document, rather than examining the root causes of the failure of parliamentary oversight, states incorrectly that, "The ANC within the legislative sector has promoted robust oversight, overseeing not just the Executives, but also robust oversight over policy implementation and impact assessment", with no reference or proposals on policy, legislative or electoral reforms that may be necessitated out of the Constitutional Court judgment on the Nkandla matter.

Quoting the Chief Justice of the Republic of South Africa:

"Similarly, the failure by the National Assembly to hold the President accountable by ensuring that he complies with the remedial action taken against him, is inconsistent with its obligations to scrutinise and oversee executive action and to maintain oversight of the exercise of executive powers by the President. And in particular, to give urgent attention to or intervene by facilitating his compliance with the remedial action."

In conclusion, governance is the means for any political party to achieve the realisation of its vision for society. In the case of the ANC, these are articulated as the ideals of the National Democratic Revolution, captured in policy iterations of the ANC.

Therefore, this discussion document for more effective legislation and governance, should be the cornerstone for the achievement of the policy proposals captured in all other discussion documents and policy papers of the ANC; as well as the National Development Plan (NDP) which was adopted as official ANC policy both at the 2012 53rd National Conference and the 2015 National General Council.

It would have been far more prudent and beneficial for the ANC, having already taken the NDP as the policy blueprint for South Africa until 2030 (with has more detailed and better articulated policy positions and solutions), to center policy discussions at the 2017 Conference around how to enact and operationalise the NDP through legislation and governance, rather than table a pack of new policy papers for discussion that duplicates the themes of the NDP.

The ANC needs to rethink the purpose of its Policy Conference. Rather than tabling high level policy aspirations for discussion, perhaps this conference should aim to achieve a tangible outcome in the form of a legislative agenda for the next two years that takes the NDP from a theoretical plan of aspirations, to a package of laws and government programmes that implements the NDP.

In terms of effective governance, the legislative process with its constitutional imperative for participative democracy; and the subsequent effective operationalisation of legislation through government programmes is the primary means of addressing identified societal priorities and therefore simultaneously keeping the ANC in power as a democratically elected government that delivers.

This discussion document fails to deal with the grand policy changes that need to be made to strengthen governance and democracy; and if adopted as is, will likely move the ANC further away from its voting constituency, rather than closer to it.

A statist model of governance does not result in more effective governance, especially when the party in control of government and the state is as deeply divided and factionalised as the ANC currently is. Much of the malaise suffered by the government and the state, is a product of internal political battles within the ANC, infecting and over reaching into the state.

While many of the proposals contained in this document may sound prudent; a far-reaching and consequential reconfiguration of the system of state management and administration is unnecessary. What is more urgent is for the government and the state to be insulated from being influenced by the poor politics of the governing party.

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