NATIONAL
ASSEMBLEY
PRIVATE
MEMBERS COMMITTEE
DRAFT
CONSTITUTION EIGHTEENTH AMENDMENT BILL, 2006 PRESENTATION BY MANGOSUTHU
BUTHELEZI, MP
QUESTION
AND ANSWERS
ON THE
CONSTITUTION EIGHTEENTH AMENDMENT BILL Sections of the Constitution are
referred as "section", while clauses of the Bill as
"clauses".
Q.: Why is the President elected by
Parliament?
A: Because if elected by the people he [a]
would have a strong
political
mandate potentially competing with that of the Prime Minister and prompting him
to interfere in the politics of the day; [b] would need to run an election
which would be divisive and which would echo the political platform of parties;
[c] could not be elected by two thirds majority and even if one resorts to a
two-tier election system, he could only achieve an absolute majority. The two-tier election system operates when
there are more than two contenders and a second election is held between the
two with the highest score in the first election.
Q: Why is the President elected by the
National Assembly only?
A: this is in line with the present schema
of the Constitution
which leaves the responsibility of choosing the present President to the
National Assembly only. However, one
could also consider having the President elected by a joint sitting of
Parliament. However, the matter needs to
be tied to the confirmation of the Prime Minister which leans against this
option. See below.
q: Why is the Prime Minister not elected
by the people but
effectively chosen by Parliament?
A: Because the Parliamentary system
strengthens Parliament and
promotes its centrality. This
is already entrenched in our present Constitution which does not call for the
President to be elected by the people.
In this respect our Constitution provides for a hybrid between an
executive and a parliamentary system in that the President is not elected by
the people.
Q. Why does the Prime Minister need to be
confirmed and can be
removed both by the National Assembly and the NCOP?
A. This is to strengthen the role of the
NCOP and increase
democracy. In a parliamentary
system the PM as Head of Government is accountable to the entire Parliament as
both Chambers, even though the President is elected by the upper Chamber
only. This is also because the PM can be
elected by a simple majority while the President's election requires at least
an absolute majority.
Q: Is the PM chosen by the President or by
Parliament?
A: The President chooses him but can only
choose the one whom
Parliament
would choose or approve of, because Parliament needs to confirm it. Whenever there is a clear parliamentary will,
the President has no discretion.
However, in time of crisis when a coalition needs to be formed the
President has latitude to shape politics, which often may include several
attempts before the right PM backed by the right coalition is accepted by
Parliament.
Q: Is the President a purely ceremonial or
titular figure?
A: No he is not. Even though all the executive power are
transferred
to the PM, the President has a broad range of own powers which he exercises
independently, such as those of assenting laws and performing a preliminary
assessment of constitutionality, the long list of sensitive powers set out in
section 84[2] as adjusted by clause 10.
He has
other powers which he must exercise in concert with other organs of state such
as the appointment of ambassadors, dissolving the Parliament, appointing
certain
Q Why at times a power vest in the
President while in others it
vests in the PM?
A. Executive functions vests in the PM,
save for when it is
necessary to ensure that such functions are exercised not to follow
the policies of the day but to check and control them so as to protect the
constitution. Therefore, the President
appoints the following officials after consultation with the PM and, as the
case may be the Judicial Service Commission or other relevant organ of state
and/or leaders of political parties: the Public Protector, the Auditor General,
members of the Judicial Service Commission [save for the four which are an
executive prerogative], members of the Public Service Commission. the justices of the
system of checks and balances
Q: Is this type of parliamentary democracy
consistent with the
trend in
A: Undoubtedly the overwhelming number of
African democracies is
based on an executive Presidency. This
may be a reason not to follow that trend and seek better solutions. In the past half century of post colonial
experience in sub Saharan Africa almost all executive presidencies have
highlighted major problems and all such democracies have suffered major
crisis. Our present Constitution has
already, in many other respects, not followed trends present throughout Africa
exactly in the hope to learn from the mistakes made elsewhere, which is the
advantage of our country being the last to achieve its liberation.
The
problem with most African countries has been that all powers have been
centralized in one office held by one person.
Often the rest of Africa looks up to
Q: Why opting for the British system over
the French one?
A: As stated above the direct election of
the president does not
achieve the desired result of having a Head of State who is above
parties' politics. The French system of
"co-habitation" is a complex and peculiarly French one which accounts
for the fact that it has not been exported elsewhere. It would be a major departure from our
present constitutional schema and traditions and is likely to create conflict
if imported into our experience.
Q: Does the Bill add real value as
compared to the present
Executive Presidency?
A: Very much so. As set out in the memorandum to the Bill, the
value of having a President and a Prime Minster is very significant in
ordinary times and becomes enormous in times of crisis or turmoil. He strengthens our Constitution and its
democracy by adding an additional system of checks and balances. The controversies arising out of daily
government, especially during difficult times, will not tarnish the presidency,
while the PM will find himself to be stronger in dealing with them. The PM can
have the institutional latitude to be unpopular at times without compromising
the office of Head of State or discrediting our entire systems of government in
the eyes of our people. Even at the
worst times, people will have a reference in an office and in a person who can
be detached from the trouble of the day and be a symbol of
unity. There are also fundamental
functions which must carry the
credibility of being performed above the politics of the day and the
conflicts of the season, such as the appointment of constitutional justices and
other office bearers of the institutions which support democracy. For these institutions to be effective, they
must only not be the expression of, and beheld only to those whom they are
called upon controlling and holding in check and balance. Moreover as the term of office of the Head of
State does not coincide with that of the legislature which elected him, the
Head of State can be a bridge between one political season and the next
one. The value of parliamentary
democracy as opposed to an executive system of government shows more clearly at
times of crisis and during extraordinary circumstances.
Because
of his "inherent powers" [section 84(1)] the role of a Head of State
is stronger in the time of crisis by virtue of the very function he exercises
and without resorting to extraordinary or emergency powers.
The PM
is also made stronger. He is freed from
time demanding commitments in
Q: Are there disadvantages to classic
parliamentary democracy as
opposed to an executive system?
A: Not really compared to our present
system. If one were to
compare it to a classic Executive Presidency there could be
disadvantages if there is no certain parliamentary majority which could force
votes of no confidence and various changes in the Executive. But in any case our Constitution does not
have a pure Executive Presidency and combines the problems of an Executive
Presidency with those of a parliamentary system, in that the President could be
voted out of office before the end of his term.
The added disadvantaged under our present Constitution when such a
crisis occurs, there is no stewardship of the Republic and the firing of the
Head of Government leaves the Republic also without a Head of State.
Q: What happens to the Leader of
Government business?
A: The position of Leader of Government
business is not provided
for in the present Constitution and is not affected by the Bill.
Q: Who deputizes the President as there is
no Deputy President?
A: The need of deputizing the president in
a parliamentary
democracy is greatly reduced.
It does not need to be deputized when he is abroad. Under our Constitution there is a
contradiction as when the president is abroad there is an acting President in
the country because of the need to have a Head of Government at home, with the
consequence of having two Presidents, as the President abroad needs to have his
powers to act as a Head of State to, for instance, sign treaties.
Because
the powers of a President in a parliamentary system do not regard the
day-to-day running of Government there is a lesser need of deputizing in the
case of illness or vacation. However,
whenever such need arises the functions are exercised by the Chairperson of the
Council of Provinces., on the basis of a standard system of check and balances.
Q: Why was the parliamentary system not
adopted at CODESA?
A: Our present Constitution has already
gone a long way in
adopting many of the features of a parliamentary system and it is a
hybrid which has already greatly departed from the typical features of an
Executive Presidency. At the
Q: How does the function of the President
as a guarantor of the
Constitution
differ from that of the Constitutional Court of the Chapter
9 institutions?
A: The responsibility of guaranteeing and
protecting the
Constitution
is spread across all organs of State.
The President would be a guarantor of the Constitution not from a
judicial viewpoint but from a political and institutional one. The most salient aspect of this power is that
of assenting laws. When a President
assents a law he needs to perform a preliminary review of constitutionality
which may lead to sending back the law to Parliament for further consideration.
It is a
difficult power to exercise when the Bill in question is produced and taken
through Parliament by the very same Government which the President presides
over when he is also the Head of Government.
Moreover,
the President in a classic parliamentary democracy has an additional inherent
power; the power of admonition. Simply
put, he is required to speak up and speak out when he sees something going
wrong not at the policy or political levels, but rather at the institutional
level. This may include problems with
the judiciary, Parliament or Cabinet.
The judiciary is barred from making such pronouncements, and if coming
from any other institutions such pronouncement would be politically
tainted. More importantly, in times of
crises the powers of the President expand to address the emergency of the time
through other organs of State. In terms
of section 84[1] the Head of State has additional non-specified inherent
powers.
Q: Will the President really be less
beholden to the majority
party?
A: There are no guarantees, but only opportunities. A President
elected with the broader majority and charged with a dignitas and
gravitas which calls on him to be above parties' politics may exercise a more
independent role and not be a puppet of his party. After he left office, President Mandela
surely achieved this goal. Furthermore,
because he cannot be re-elected or hold other offices under the Republic, the
President should be freer from the commands and dictates of those who elected
him.
Q What happens if the National Assembly
does not agree on a PM?
A. The same as under the present
Constitution: the previous PM
serves until the next one takes office [prorogation]. If they want to get rid of the previous PM
the members of the National Assembly must find consensus on a new PM.
Q. In real life, will the President of the
majority party be the
PM or the President?
A. One cannot predict with certainty the
future of politics, but
it stands to reason that the President of the majority party would become
the PM, as he is the one who governs the country.
Q. Why were
parliamentary democracies?
A. Even though those two countries have a
PM, the President is
both Head of State and Head of Government and the PM merely assists and
counsels the President in the conduct of government.