Constitutional law experts have weighed in on President Cyril Ramaphosa’s announcement that he would appoint an acting police minister, arguing that the law permits him only to appoint an acting minister from within his cabinet.
Ramaphosa announced that he would be replacing police minister Senzo Mchunu with Prof Firoz Cachalia after damning allegations against the minister.
“Cachalia is currently a professor of law at the University of the Witwatersrand and is the chairperson of the National Anti-Corruption Advisory Council. He previously served as the MEC of community safety in Gauteng. I am appointing Prof Cachalia in terms of section 91(3)(c) of the constitution, which empowers the president to select no more than two ministers from outside the National Assembly,” he said.
He added he would appoint an acting minister from within cabinet until Cachalia takes up his post at the beginning of August.
Ramaphosa’s reliance on section 91(3)(c) of the constitution was quickly questioned by political parties who argued that he misinterpreted this section.
The EFF said Ramaphosa was acting in direct violation of section 98 of the constitution, which states the president may assign to a minister any power or function of another minister who is absent or otherwise unable to fulfil the functions of office.
“It is clear from this provision that only a sitting minister may be assigned the functions of another. The constitution makes no room for the appointment of an acting minister from outside the cabinet. Additionally, President Ramaphosa relies on section 91(3)(c) of the constitution to justify his election of an acting minister, which states — the president may select no more than two ministers from outside the Assembly. Evidently, this section does not speak at all to the appointment of an ‘acting’ minister nor does it make provisions for the appointment of an ‘acting’ minister outside the National Assembly. The president’s decision is therefore not just unlawful, but a deliberate abuse of the supreme law of the land,” the EFF said.
Constitutional law expert Dan Mafora agreed with the EFF, arguing that the section relied on by Ramaphosa did not empower him to appoint an acting minister.
“But he cannot directly appoint someone outside cabinet in terms of 91(3)(c) to be an acting minister, because that is governed by section 98. So what I think is going on here is that Prof Cachalia is probably going to be appointed as a minister without a portfolio and once he's taken his oath of office as a member of cabinet, then he will be designated as an acting minister of police. From a reading of the statement, that's not clear at all. It sounds like Ramaphosa is saying that he's using the section, to appoint Prof Cachalia and that that's simply not possible,” Mafora said.
It is an incredibly bad time for the ANC. It's a time when they start gearing up towards the next elections. But so much of the credibility depends entirely on what happens on corruption, and these Mkwanazi revelations have really brought corruption right to the surface.
— Prof Susan Booysen
He added that Ramaphosa will still need to make a legal proclamation or make public the president's minutes for the decision to be lawful should anyone wish to challenge it.
“But as it stands right now, it just seems like he was making his intentions, or telling us what he intends to do, and in doing so, he cited the wrong sections [of the constitution].”
Mafora said Ramaphosa’s options in dealing with the endemic corruption exposed by KwaZulu-Natal commissioner Nhlanhla Mkwanazi were limited, adding the president had empowered the commission.
“So previously, you just get a commission that would investigate and write a report and maybe make recommendations. But here he's saying that this commission is going to have this particular power to say that these people should be suspended, or to say that these people should be investigated and prosecuted. So I think that he is trying, by all means, to make sure that the commission is far more effective than ones that we've seen before.
“But otherwise, I'm not sure what else he could have done. He could have fired the minister and perhaps started a process of removing the national commissioner, but those would have also been unsatisfactory to [some] people. So I think that with this focused and seemingly powerful commission, it was probably the only way he could have gone about it to be honest.”
Political analysts, however, have varying opinions on whether Ramaphosa’s decision to establish a commission of inquiry was enough to allay fears about corruption in the security cluster.
Ntsikelelo Breakfast said Ramaphosa dealt with these issues very well. He said the ANC would also need to be seen to be acting against ministers implicated in wrongdoing.
Breakfast warned that the ANC could see a further decline in support should it fail to act against Mchunu.
The ANC is expected to discuss Mchunu’s position in the party when it meets for its national executive committee meeting on Friday. TimesLIVE reported on Monday that some national working committee members were calling for Mchunu to voluntarily step aside until the work of the commission is concluded.
Mchunu was scheduled to meet with the ANC’s integrity commission, which would recommend whether he should step aside from his roles within the party.
Prof Susan Booysen questioned the authority of the integrity commission to enforce the step aside rule. She said ANC leaders had historically used the integrity commission to avoid internal prosecution. She said she would not be surprised if the ANC acts in a more “neutral” way against Mchunu.
“It is an incredibly bad time for the ANC. It's a time when they start gearing up towards the next elections. But so much of the credibility depends entirely on what happens on corruption, and these Mkwanazi revelations really brought corruption right to the surface.
“It pushed to the surface with great thrust, the reality that the corruption goes so deep, and people at such a high level are probably involved in it, that all previous reassurances come almost to naught.”
She said that while Ramaphosa’s decision to establish a commission of inquiry was welcomed, he needed to say more to South Africans during his national address. She argued that Ramaphosa did not adequately emphasise his commitment to rid the government of corruption.
“I think his personal voice could have been stronger. The efforts the ANC has put into countering corruption in all forms in the state so far, has not come to enough, and he could have given a much stronger voice in absolutely pledging and putting his head on a block that from now on, things will definitely change.
“So I would have liked to hear a much stronger voice from Ramaphosa, much more convincing than just a very good brief announcement of a commission of inquiry. Whereas we have this history and experiences of commissions of inquiry, so I don't think it was enough.”
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