The era of lawfulness and politics in South Africa has commenced. The Madlanga Commission is undeniably focused more on scrutinising prerogative and arbitrary government actions, which are decisions made by those in power without proper regard for the rule of law, than on what is publicly displayed. Executive authority overreach is under investigation. The inquiry has thus far emphasised the extent, importance, and legality of the power of ministers or executive authorities to issue directives.
The validity of the
politics behind public policy can no longer override the lawful obligations of
organs of state, human or otherwise, appointed or elected. The government’s
role as the institution bound to adhere to the rule of law—delivering services
lawfully—has entered a new and critical phase. Henceforth, politicians
must know and respect the constitutional order’s limits on their vocation.
Whether elected or
appointed, organs of state, institutions, or functionaries are characterised by
the public power or legislated functions they wield, exercise, or perform. Such
powers or functions are invalid if they are not defined in or by law. From a
public financial management perspective, any decision to spend from the State
Revenue account without supporting legislation is unlawful. In the
Auditor-General’s parlance, it is irregular and fruitless.
While the constitution
provides for the executive authority of the province to be vested in the
Premier, it does not abrogate the responsibility for sovereign state affairs to
any sub-national executive authority. Policing, a critical component of
national security and a sovereign state affair, is a national government function
that the South African state regulates through national legislation.
Within a cooperative
government framework, policing operates at both provincial and municipal
levels, which the National Commissioner oversees and manages. The constitution
states that provincial policing falls under the responsibility of the
provincial commissioners. The provincial executive authority framework relates
to policing through annual reporting and other regulated administrative
provisions, which do not include the creation of a policing entity or similar.
Apart from the civilian
aspects of policing, which are managed through a secretariat delegated to the
subnational executive level, the Premiers bear a political responsibility
towards policing. Since policing is a sovereign state matter and cannot be delegated
to any subnational jurisdiction, any decision regarding policing will
essentially be unlawful unless it is based on the authority from which the
policing power derives.
The executive authority
of the Premier does not include sovereign state functions, such as policing or
national security. The provincial premiers possess fragmented executive
authority and do not hold full or autonomous executive powers, except for distributive
or redistributive functions explicitly outlined in the constitution’s
schedules. Premiers are, at best, nodes within the intergovernmental relations
system and custodians of any significant provincial or regional rigidities that
require decentralised provincial executive authority.
Premier Lesufi’s
decision to establish a provincial policing unit, Mapanyapanya, for which he
has already incurred expenditures on a scale that the Gauteng Provincial
government had not previously undertaken, was, by any definition, a prerogative
and arbitrary act. It was unlawful, irregular, and fruitless in expenditure
terms. This decision and its consequences underscore the importance of legality
in political actions and the potential to undermine the normative character
and, by extension, the obligations of state organs as outlined in the
Constitution.
With diminished voter
support and relying on borrowed political and social capital, also known as a
coalition, the Premier’s legitimacy, which should always be grounded in
legality, was compromised. The politics behind the Premier’s decision might be
a convenient excuse for the apparent unlawfulness. The harsh truth is that
politics should never allow unlawfulness to become its currency under any
circumstances.
Naturally, though
regrettably, those involved in politics, operating within a toxic environment
of competition and confirmation bias, will, unfortunately, place the Premier in
a position where the priority is to ensure his political party is not perceived
as wrong. Just because something is politically correct doesn’t mean it is
lawful. Normative governance is hardly normative if you have convinced yourself
that the rules of normative governance do not apply to you. The narrative of
not apologising for this gross dereliction of constitutional duty does not bode
well for the megaphoned renewal programme.
The constitutional
values and provisions that define RSA serve as the foundation for the country’s
normative leadership. They guide us through all the incidental controversies,
changes, and challenges stemming from political events. Lawfulness is the
uniform, or jersey, that all public officials and state organs must wear at all
times when they act as such.
We cannot arbitrarily remove
the jersey to return to a place where politics and prerogative decisions become
the primary focus around which we all revolve, at the expense of the normative
constitutional order we have embraced and are carefully constructing.
How the issue of
unlawfulness, which characterised the establishment of Mapanyapanya, is handled
will test how the political control environment manifests in the emerging phase
of lawfulness. In this period, adherence to the rule of law is becoming more
prevalent. Showing political grace to Premier Lesufi might encourage a
belief in our own value and worthiness as a society, that our new voices and
choices are part of the normal system, regardless of the outcome.
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