A constitution designed for a Mandela buckles when someone like Zuma is at the helm

22 October 2017 - 00:00 By Barney Mthombothi and barney mthombothi

We've fallen in love with it; we've paraded it like a newborn baby for all the world to admire. We haven't stopped basking in its glory. It is the bedrock, lodestar and inspiration of our democracy.But we have to admit, even if reluctantly, that our constitution has also turned out to be the soft underbelly of our democracy. It has handed untrammelled power to the president.The word used is "prerogative". It means untouchable. He can't be questioned. It is his right to do as he pleases. The constitution gives him that licence. That was obviously not the intention of the framers of the constitution, nor is it the desire of the millions who see it as a route to a better life and a bastion against oppression.Not so long ago the aim at every election was to deny the ANC the two-thirds majority that would grant it carte blanche to change the constitution. There would be a collective sigh of relief each time the ANC failed to achieve that magic number. We were prepared to defend it with our bodies. We still are.Two decades on, with the benefit of hindsight, maybe it's time to take stock of our constitution, its successes and failures and where it needs a bit of nipping and tucking.It is not that the constitution is a flawed document. Far from it. It's probably too good for humans. It's ahead of its time and its people. It's a roadmap, a pointer to a future that, in the main, is still beckoning.The drafters had in mind a saint for a president, and probably had a dollop of naivety too. Unfortunately we don't have Nelson Mandela wielding the power but Jacob Zuma. And he's been flaunting it to his heart's content. Just this week he shuffled his cabinet for no apparent or logical reason except that he could do it. Neither excuse nor explanation was proffered. It is - that word again - his prerogative. He held up the appointment of the SABC board, again for no reason except that he could. Such actions are reminiscent of a dictatorship, not democracy. But while they may appear unreasonable or irrational, and are clearly detrimental to the national interest, they are not at all unconstitutional.The president has the power to appoint the cabinet, directors-general, premiers, police commissioner, the head of the army, national director of public prosecutions and mayors, in some instances. He's not legally obliged to consult or take any other view into consideration in making those appointments.The framers of the constitution thought they had come up with a mitigation to such unfettered powers by creating the Chapter 9 institutions. But guess what? The president has the final say on who heads those institutions.Nothing, for instance, could stop Zuma from appointing Glen Mashinini, his adviser, to be chairman of the Independent Electoral Commission. Bongumusa Makhathini, chairman of one of his wives' foundations, is off to chair the SABC board. Dudu Myeni, another one of his sycophants, was the stuff of legend at SAA.The president also appoints judges and judicial commissions of inquiry. The drafters of the constitution never envisioned a situation in which the president himself would be the target of such an inquiry. Which is why former public protector Thuli Madonsela has recommended that Chief Justice Mogoeng Mogoeng, and not Zuma, appoint a judge to preside over the inquiry into state capture. Predictably, Zuma doesn't agree and has taken the report on review.Come to think of it, state capture happened even before Zuma got into office. Former Eskom executive Ted Blom told parliament this week that he met Zuma at his Forest Town home in Johannesburg in 2008, a year before Zuma became president. He instructed Blom to meet a "fixer team" who told him they wanted "to eat at Eskom".Why would a parastatal executive kowtow to a man who had no power either in government or at the entity? For the same reason the spineless Mokotedi Mpshe indulged Michael Hulley, Zuma's lawyer, when he approached him with the so-called spy tapes. Instead of prosecuting Hulley for being in possession of stolen state property, Mpshe dropped all charges against Zuma. We now have a country facing ruin because of Mpshe's feeble and unethical conduct.Both obliged because they knew Zuma would soon be president and would have an arsenal of powers at his disposal, and woe betide anyone who disobeyed.On taking office, Zuma, who had been on the run from the criminal justice system, became the hunter. Suddenly he had the power to appoint the minister of justice and head of the NPA.In a sense, state capture was not so difficult for the Guptas to accomplish. They simply captured the man with all the powers - our president.If there's any silver lining to the Zuma presidency, it is the fact that it has alerted us to the enormous powers we've invested in that office. But attempting to amend the constitution could be a dicey undertaking. It could lead to the unraveling of the whole thing; a free-for-all, with different constituencies picking and choosing their indulgences. Also, any party that gets into office would be reluctant to reduce those powers. Once given, it's difficult to take away those powers.Some of the Chapter 9 institutions have proved useless in curbing the powers of the executive. We need to craft a system that makes power directly accountable to the people. Structures that are themselves removed or distant from the masses cannot be expected to ameliorate overweening power...

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