Buthelezi Legislative Proposal: to amend current executive system

Private Members' Legislative Proposals and Special Petitions

13 March 2008
Chairperson: Ms P Mentor (ANC)
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Meeting Summary

Hon Prince Buthelezi had submitted a Legislative Proposal to amend the current Executive system by introducing the office of Prime Minister, which would involve several changes to the Constitution. The Committee had looked at the proposal in very broad terms in the preceding week but Prince Buthelezi presented the proposal in detail and specifically answered the questions that had been raised at the last meeting. Members of all parties expressed their appreciation of the meticulous response which showed a great deal of effort and commitment. The proposals in the Bill were complex and raised difficult political issues that would entail considerable discussion.

Prince Buthelezi explained that his proposal was to provide for the separation of the two offices of Head of Government and Head of State. The President would be able to attend to ceremonial functions, but would also have other powers,  while issues of governance would be dealt with by the Prime Minister, who would concentrate thus on the serious political and social issues. The President should be elected by Parliament and preferably be above party politics and free of the commands and dictates of those who elected him. The President would choose the Prime Minister but that would have to be confirmed by both houses of Parliament. He suggested that the matter was urgent, requiring implementation before the next election.

Members asked for clarity on the appointments, and asked who would deal with declarations of war by the State. They enquired what had changed since this matter had been discussed at CODESA, with some Members commenting that the present system seemed to be working well. Members alluded to situations where there had been tensions between President and Prime Minister elsewhere in Africa, and it was noted that a comparative study had been prepared by the Committee researcher. The matter would be debated further in the next week.

Meeting report

Buthelezi Legislative Proposal
Ms Mentor recapped that Prince Mangosuthu Buthelezi had apologised last week that he had not been able to attend. Some preliminary points were raised for clarity. She wished to give the Member a sense of where the Committee wished to have further elaboration. 

The Committee had noted and appreciated that the Honourable Member had wanted to restore dignity to the Office of the President. The Committee now wanted further motivation around the proposal. It was noted that if the Committee accepted the proposal the whole machinery to do with the  proposed office of the Prime Minister would have cost implications. National Treasury were therefore invited to attend. The Department of Justice had also been invited because it was a proposal with constitutional implications, and the Department of Public Service and Administration had also been invited.

It was noted that the Director General of the National Treasury (NT) was abroad and tendered his apologies.

Mr Johan Labuschagne, Principal State Law Advisor, represented the Department of Justice.

A letter had been addressed to the Director General in the office of the Presidency, but there seemed to be some difficulty in communication and the messages had not bee responded to. That would be reported to the Committee Section.

Mr S Mshudulu (ANC) was pleased that the Chairperson had outlined the procedures, and in particular had explained that the Committee had not deviated from its policy that a person should be in attendance when the Committee heard the presentation.

The Chairperson noted that she had asked the researchers to do a comparative analysis of emerging democracies, advanced democracies and African countries where there was a Prime Minister position. She would later ask Mr Rhoda, the Researcher,  to take the Committee through that analysis and the role of the Head of State in those three categories.

Prince Mangosuthu Buthelezi noted that he had prepared and tabled a document of answers to the questions raised by the Committee at its previous meeting. (See attached document for all questions and answers) He read through this document. He said that in essence the legislative proposal was to provide for the separation of the two offices of Head of Government and Head of State. The President would be able to attend to ceremonial functions while issues of governance were taken care of by the Prime Minister. The Prime Minister could thus concentrate on issues of governance, without having to attend to the ceremonial side that would otherwise limit his capacity to deal with the serious political and social issues of the day. However, the President would still have other real and significant powers. The President should be elected by Parliament and preferably be above party politics and free of the commands and dictates of those who elected him. The President would choose the Prime Minister but that would have to be confirmed by both houses of Parliament.

Prince Buthelezi stressed the urgency of the matter. If the proposal were to be implemented it should be done before the next election.

Discussion
Mr A Ainslie expressed his appreciation of the extent to which the Hon Prince Buthelezi had gone in his responses to the questions raised last week, and commented that he had given much time and detail to the work..

The Chairperson also expressed her thanks, noting that Prince Buthelezi was well known as an orator and writer. She also thanked him for answering the questions raised last week so succinctly.

Mr Johan Labuschagne, at the request of the Chairperson, then explained that he was at the meeting because this matter was discussed with the Minister for Justice and Constitutional Development. The proposals in the bill were very complex and it was a difficult political issue. The Minister had asked Mr Labuschagne to attend and observe the proceedings and report back to the Minister on the progress made.

The Chairperson was pleased with his summation of this as a complex and difficult political issue, on which Parliament must exercise its role without fear or prejudice. However, it was also an administrative issue, and, as pointed out by Prince Buthelezi, would have to be handled with care.

The Chairperson thanked Prince Buthelezi for sharing with the Committee that President Nelson Mandela had said that he was de jure President while the de facto President was the current President Mbeki. She also quipped that Prince Buthelezi should not, in referring to the offices of the President and Prime Minister be using the male pronoun.

Hon Prince Buthelezi apologised for this slip.

The Chairperson  noted that this proposal was being presented in a personal capacity, and she would like IFP members to participate without constraint.

The Chairperson sought clarification on some points. She noted that it seemed that the proposal was suggesting that the President must appoint the Prime Minister together with Parliament. However, the document of questions and answers asked:  ‘Why was the Prime Minister not elected by the people but effectively chosen by Parliament?’ She asked for clarity whether the Prime Minister would be appointed by the Head of State alone, or by the Head of State together with Parliament,  and whether Parliament could frustrate the Head of State in appointing the Prime Minister if they co-appointed the Prime Minister.

A further point was made that the election of the President should not coincide with that of Parliament.

The Chairperson asked who would deal with declarations of war; the President or the Prime Minister or both.

The Chairperson reiterated that this was a very difficult and political issue, that had received some discussion during negotiations at the World Trade Centre. She suspected that because it was fielded there, there might be a lot of ground to be covered. Some issues discussed at CODESA were still in the forefront of people’s minds and it might be difficult to revisit this issue. However, because it had not been agreed upon at CODESA, it could be difficult to reintroduce it now. However, whatever the outcome, Prince Buthelezi must be thanked for raising the issue.

Prince Buthelezi, responding to the questions, referred to the draft amendment to Section 42 (3) and (4) , which stated that the National Assembly would elect the President and confirm the Prime Minister. The NCOP would also participate in the legislative process, confirm the Prime Minister and provide a national forum”.

The appointment of the Prime Minister himself was dealt with by the insertion under Sections 90A and 90B of the Constitution of the Republic of South Africa, which were read out. He stressed that the President would appoint a person to be the Prime Minister. In doing so the President would conduct consultation, which would include the leaders of the largest parties represented in the NA. The assumption of that person to the office of Prime Minister would happen after confirmation by the NA and NCOP. In other words, the President may appoint someone but until the confirmation and resolution of the Houses  that person was effectively a nominee.

In relation to the question around the declaration of war, Prince Buthelezi pointed out that this would fall under the amendment of Section 201 of the Constitution. The Prime Minister, in consultation with the President, would authorise the deployment of the defence force. However, if it was engaged in war, then the Prime Minister must inform Parliament.

Prince Buthelezi added that the development of events and the way things turned out had convinced him that the time was ripe for the proposal. He had raised the issue in Parliament that the Head of State was the face of South Africa and therefore anyone insulting that person was insulting the country. The current issues convinced him that it was necessary to change the Constitution for the sake of South Africa. His proposal of seven years was deliberately to provide for a bridge.

Mr Ainslie submitted that the Speaker of the National Assembly had often said she wished to extend the national debate and Hon Prince Buthelezi’s proposal did just that. Whether members agreed with him or not it did give them the opportunity for vigorous debate.

Mr Ainslie said that the proposal made a good case out for a Prime Minister but, in his opinion, it did not make a good case of what was wrong with the present system, which to his own mind seemed to be working. The Executive President made himself available to Parliament and to the National Assembly for vigorous and thorough questioning; there was also a Deputy President who was part of the House and was also Head of Government Business. There was a very good relationship between the Presidency and Parliament. Many of these points had been raised over the last seventeen years or longer, with vigorous debate between the first democratic elections and the final Constitution. All parties had countless public meetings when this issue was discussed and it was thoroughly examined, including having outside input before the final Constitution was signed. There had been widespread consensus at every level. He wondered if there were new facts now brought to light that were not available to CODESA that should be taken into account to consider this drastic change to the Constitution.

Mr Ainslie also asked when the Committee would get a response from the Department of Justice; this matter had been on the table for two years.

The Chairperson responded that Prince Buthelezi had said that the current issues in our country were the new circumstances; whether they were strong enough was another issue.

Mr B Magwanishe (ANC) agreed that Prince Buthelezi had a good argument but indicated that whatever views were expressed not be a reflection on him. The issue was a matter of choice. His initial response was also that there were problems with the system he was proposing and there might be challenges with the Executive President. There could be a situation where, because of personalities, there could be tensions between the Prime Minister and the President, similar to those that arose towards the end of the regime of the former Transkei Government between Kaizer Matanzima and George Matanzima. The President’s powers were not solely vested in the President, but between him and Parliament. The President would appoint the Prime Minister from the party that won the election. There could also be tensions between the two offices in the system that Prince Buthelezi had proposed, especially as there were fewer powers of the President, and sometimes because of the personalities of the individuals.

Mr Magwanishe pointed out that national unity did not only depend on strengthening the Executive, but depended on strengthening all organs of State, which he thought this democracy was trying to do. People had the right to input. Other institutions had been appointed. Hon Ainslie had alluded to the fact that there did not appear to be anything fundamentally wrong with the current system. The system was still developing. He was not convinced that our system of government was not able to respond to these issues. The arguments that Hon Buthelezi had alluded to were made in the current system during the time of President Mandela.

Mr J Selfe (DA) shared the view that this was an extremely important debate, which the DA took very seriously, and he echoed the compliments of his colleagues for the work that Prince Buthelezi had put into this. He noted that in his introduction, Prince Buthelezi referred to the four centuries of growth of the institution of Prime Minister, which was really an institution where powers were clawed away from the traditional Head of State. Those heads of state still had residual or inherent powers. One of the great advantages of our Constitution was that it defined the powers of the Head of State in very explicit terms, as opposed to relying on those rather more vague residual or inherent powers. He wondered whether there was not an argument to be made out that if these things were left vague they could in fact be abused as they were in the past.

Mr Mshudulu thought that there was a need for the Office of the Presidency as well as Department of Justice to respond in writing.

The Chairperson advised that the Researcher had circulated a report on preliminary research on Canadian and other models.

The Chairperson noted that Prince Buthelezi must also feel free to communicate further with the Committee between now and its next meeting. He could make further input if he wished.

Prince Buthelezi made it very clear this was a notion and initiative that he had put before the Committee in good faith. It was a draft and Parliament could work it further. He was very surprised that Mr Ainslie could see nothing wrong with the present system. The things that had happened had convinced him of the need for this division. He noted that when the Prime Minister of India had visited, the President was treated badly at a function in Durban and was abused in public, and there had since been other incidents. As a South African citizen he was disturbed that the Head of State, who was the face of the country, should be treated in such a manner. He was not trying to impose anything, but he had a conscience, and as a South African citizen and a legislator he had a right to suggest that storms were ahead and must be taken seriously.

Prince Buthelezi said that Mr Magwanishe’s example of the Transkei was one small example against all the other countries he had quoted where the system was working. It was a matter of opinion whether the system was open to problems. He responded to Mr Selfe that he did not think there was anyone who could operate outside the cornerstone of the Constitution. He had made an example of what happened in Spain, when the President had essentially saved the country when renegades raided and tore Spain apart. He was able to do so using Presidential powers. He noted that just as some Presidents were good and others not, so would some Prime Ministers be good and others not.

It was noted that the matter would be debated again in the following week.

The meeting was adjourned.


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