Picture this: it’s 2024, the ANC has won the national election by the slimmest margin yet — a paltry 52% — and the party’s recently inaugurated president, Duduzane Zuma, is settling into Mahlamba Ndlopfu. He’s already been busy: he’s suspended national director of public prosecutions Shamila Batohi and Reserve Bank governor Lesetja Kganyago on the strength of "intelligence reports" indicating "rogue behaviour".
He’s fending off legal action over his decisions, with his adviser Dali Mpofu looking for ways to delay the suspensions being set aside. In the meantime, he’s appointed Busisiwe Mkhwebane as acting prosecutions boss, and his mentor Atul Gupta has taken over the running of the newly nationalised Bank.
Finance minister Ace Magashule will soon deliver his inaugural budget. He’ll address the usual pre-event briefing flanked by Gupta and SA Revenue Service (Sars) acting commissioner Dudu Myeni, appointed to the post to replace Edward Kieswetter, who was suspended by the new president shortly after his swearing-in.
It’s an earth-shatteringly depressing picture of state failure, and highly unlikely. Or is it?
Cyril Ramaphosa’s tenure in the presidency has so far been characterised by attempts to reform and clean up the state. To do so, he has largely replaced errant, captured and potentially corrupt heads of key state institutions with more credible leaders.
But what measures are in place to ensure that the country doesn’t again find itself at the mercy of a rogue president, whose interests are as far from serving the people as the Burj Khalifa is from Table Mountain?
Simply put, despite Ramaphosa’s reform agenda, nothing has fundamentally changed in the makeup of SA’s constitutional order — or in the ruling party — that could prevent a repeat of a presidency run along the lines of Jacob Zuma’s.
So what has to change? Can the presidency and SA be "fireproofed" against leaders of nefarious intent?
"There is no system that is fireproof," says Ebrahim Fakir, programme director at the Auwal Socio-Economic Research Institute. "It is impossible to find, because what you are trying to do is depoliticise what is inherently political."
But there are ways to minimise the risk. In 2014, then deputy chief justice Dikgang Moseneke delivered a lecture in which he argued quite forcefully that too much power rests in the presidency, particularly when it comes to making appointments.
"A careful examination of the powers of the national executive chapter in the constitution displays a remarkable concentration of the president’s powers of appointment," Moseneke said at the time. (When the FM contacted him, he said the views expressed in that lecture have not changed.)
At the time, Moseneke suggested SA should review the powers of the president over the next two decades.
He said the president plays a deciding role in appointing the chief justice of the Constitutional Court, the deputy chief justice, judges and heads of institutions such as the National Prosecuting Authority, the public protector and the auditor-general. The incumbent may also remove these officials on particular grounds.
The president also appoints the heads of the police, military and intelligence services, the governor of the Bank and the commissioner of Sars.
This was deemed a major factor in enabling Zuma’s execution of the state capture project.
It is parliament which has failed. The ANC uses its majority in crude ways to blunt parliament; the ANC also gives its president too much power
— Ebrahim Fakir
But there is disagreement among analysts on whether the powers of appointment are overly concentrated in the presidency.
Council for the Advancement of the SA Constitution (Casac) executive director Lawson Naidoo says there is a case to be made for a more open, transparent and competitive process in the appointment of the national director of public prosecutions, for instance. But he says the allocation of power to the president to appoint his deputy and cabinet is appropriate.
In order to fireproof the presidency, Naidoo says, the process for appointments to key positions — chief and deputy chief justice and the prosecutions boss, for example, as well as appointments to the boards of state-owned enterprises — could be formalised.
"Appointments to institutions in the criminal justice sector [the police, Hawks and the like] must also be strengthened. But ultimately, the most effective check on the abuse of power by the president or the national executive rests with parliament and the judiciary," says Naidoo.
"The principle of the separation of powers lies at the heart of the constitutional framework. That framework is a hybrid of a pure presidential system and a Westminster-type parliamentary system, where power is shared between the two arms of the state."
This is where the country has failed in the past two decades.
Fakir concurs with this point, but disagrees that the president holds too much power in making appointments, saying: "Someone has to exercise executive power."
The problem is that oversight institutions such as parliament have failed in their duties to hold the executive to account — as the Constitutional Court judgment on Nkandla found back in 2016.
And parliament is still failing, says Fakir, even under Ramaphosa. By way of example, he cites the Digital Vibes saga, and how health minister Zweli Mkhize was able to get away with a flimsy letter arguing that the matter of the allegedly dodgy communications contract was "sub judice", meaning he couldn’t answer questions before parliament’s portfolio committee on health.
"It is parliament which has failed. The ANC uses its majority in crude ways to blunt parliament; the ANC also gives its president too much power," says Fakir.
"The majority is used by the ANC in a crude way. There is almost a sinister underlying intent to allow those in executive authority to run rampant."
So what is to be done (outside of booting a corrupt ruling party out of power)?
Songezo Zibi, former Business Day editor and author of Raising the Bar: Hope and Renewal in SA, says the problem is broader than an individual — it’s about how to minimise executive overreach. And the fundamental way to do this is to strengthen parliament through electoral reform.
This, he says, will introduce a greater "tension between the interests of a particular party and that of society" by making sure MPs are directly accountable to a constituency.
"This will break or lessen the stranglehold of the party," Zibi continues. "When someone is directly elected, the party grip loosens … and this forces the executive to think more carefully about how it behaves."
Zukiswa Rantho’s name should ring a bell here. She was an ANC MP who chaired parliament’s explosive inquiry into the capture of Eskom — and was "rewarded" for her sterling work by being left off the ANC’s lists of MPs returning to parliament.
At the same time, former ministers and MPs who were deep in the pockets of the Guptas and steeped in allegations of state capture — think Mosebenzi Zwane, for example — made it back onto the party lists.
Would directly elected MPs eliminate the risk of capture? Probably not, but such a system would certainly lessen it.
Electoral reform marks the first step towards greater accountability of the executive.
"Once parliament is more independent, you can force the executive to seek parliamentary approval for executive decisions," says Zibi. "You are able to more effectively lessen executive discretion."
Naidoo has argued similarly. On Casac’s behalf, he made detailed submissions to the Zondo commission on how to strengthen parliamentary oversight of the executive.
But Valli Moosa — former constitutional affairs minister who recently chaired a committee to advise home affairs minister Aaron Motsoaledi on amendments to the Electoral Act — cautions that electoral reform cannot be a panacea for a bad or crooked president.
"That is a criminal justice matter. Electoral reform is about how we take democratic representation forward and deepen how the will of the people is reflected," he says.
That said, Moosa’s committee has recommended that parliament be made up of more directly elected MPs — 200 drawn from the party list system and 200 directly elected.
It’s a recommendation that stems from the Constitutional Court finding that the Electoral Act is unconstitutional, as it doesn’t allow independent candidates to stand for election nationally — a flaw parliament has been ordered to rectify.
Still, electoral reform that strengthens parliamentary oversight and takes some power out of the hands of party bosses — and places it in the hands of the people — can only strengthen democracy.
Also, strengthening parliament is just the first step towards greater executive oversight, says Zibi, who has dedicated a chapter in his book to this issue. Another would be mandating the disclosure of critical information such as major procurement decisions: disclose how companies win contracts, who they are, who their directors are, and whether they have donated to any political parties or politicians.
"These mechanisms would significantly narrow the space for a president to be rogue … Once you introduce such public scrutiny, you will find that guys with something to hide would automatically eliminate themselves," he says.
Strengthening parliament through electoral reform may be one way to begin fireproofing SA from an errant president. After all, the country is sure to have another some time in the future — from the ANC or a new governing party.
And such questions need to be grappled with, as the ANC is "at sixes and sevens when it comes to the modern rules of government", says Fakir.
The party empowered and then enabled an errant president once. Who’s to say it will not do so again?
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