Separation of Powers – The Ghost in the Machine

In South Africa, we have not questioned the structure of our State since 1994. This is mostly because we were so proud of the fact that the Apartheid state was removed and replaced with what seems to be a more just structure.

But few people have actually critically evaluated the source and division of power in South Africa’s state structure.

We are taught in constitutional law that we adhere to the trias politicas of Baron de Montesquieu, but when you trace the transference of power in our democracy, we see that the arms of state are not as divided as they should be. The ideal transference of power in a democracy is where the people transfer their power to the branches of government, and then those branches keeps each other in check. The branches of state must not only be formally divided into the executive, legislature, and judiciary, but these branches must be substantively independent in order to be free to keep each other in check.

In South Africa, we have the formal division of power, but I argue that we lack the substantive division. Here are my arguments why.

How does it work in South Africa?

We elect political parties in our elections to represent us in Parliament by using a proportional representation system. The percentage of votes the political parties receive is then calculated to the corresponding number of the 460 seats in Parliament. This election cycle is the only transference of power from the people to the State. The rest of the division of power is split from above.

The majority party chooses one Member of Parliament to become the head of State, called the President. The President then elects the Cabinet, forming the executive (note, the people have no control over who forms the executive, as it is decided by the political parties themselves). To constitute the judiciary, Parliament and the executive send delegates to the Judicial Service Commission to appoint them.

In South Africa, we have the situation where a single majority party has been the source power of all three arms of State. They are the majority in Parliament, they are the ruling executive, except in the province of the Western Cape, and with their majority in both the executive and legislature, they have major control over the appointment of the judiciary.

We divide power into spheres as well. We have a national, provincial, and municipal separation of power. Until recently, with the exception of the Western Cape, all three spheres were controlled by the majority party of South Africa.

One can thus compare South Africa’s division of power with a fountain. One source of power being the election that spreads into the trias politicas and the three spheres of government.

Is this effective?

At the core of the separation of powers is the idea that the three branches of government keep each other in check. A very noble idea, indeed, and in theory South Africa adheres to that idea; but we comfortably ignore a core problem with our system. There is a ghost in the machine: The political party itself. Uniquely in South Africa, we have a system where one political entity receives legitimate control over all three branches of government, effectively with a single election.

The three branches of government receive power from the same source, controlled by a mother body. This seriously casts doubt on the effectiveness of the check and balance system in South Africa.

We are in a very precarious situation as the National Executive Committee of the African National Congress straddle both the legislative and executive branches of the State as President Jacob Zuma, Deputy President Cyril Ramaphosa, Speaker of Parliament Beleka Mbethe, and the head of the Communist Party (Gwede Mantashe), Zweli Mkhize and Jesse Duarte are ex officio at the head of the ANC. If these persons who are supposed to keep each other in check are all members of the governing council of the dominant party (that effectively controls all three branches of government), that certainly diminishes the claim that we do in fact separate powers in South Africa.

Yes, there are many other democracies across the world where the political parties have a lot of sway in the election of the government officials, most notably the Republican and Democratic parties in America, but what makes the United States unique is that the source of the executive power is separated from the power source of the legislature. The executive's power source lies in the Electoral College, and the legislature is decided by the election of congressmen and senators in each respective state.

When one takes this into account, certain political anomalies are explained. Take, for example, the Nkandla scandal.

The President was found by the Constitutional Court to have violated his constitutional obligations, yet Parliament failed to hold him accountable in any way. In fact, Parliament was also blamed by the Court for not upholding their obligations to the Constitution. Would there not have been accountability if these bodies’ power did not stem from the same political source, i.e. the election of the ANC as majority party?

Let us again look at the United States for an example. President Richard Nixon accomplished almost complete political unification of the United States in 1972 when he ran as the Republican nominee and received the electoral votes of all the states except Massachusetts and Washington, D.C. When the Watergate scandal came about, the Republican Congress started with judicial inquiries and geared up for a full-scale impeachment of Nixon. This process was only stifled with his resignation in 1974. Both the executive and legislature were Republican, but they were by no means hindered by their political affiliation to keep each other in check. Why was that? The answer is simple: They knew that if they do impeach him, they will remain unharmed as the Republican Party cannot do anything to them as their power stems from a different source. Yes, it is true that Nixon lost the support of the Republicans during the Watergate scandal, but the premise of my argument holds.

The system we have creates an environment of patronage to the NEC of any political party. Their power sources from the political party itself and, therefore, for the politicians to conduct themselves according to their conscience is secondary to the approval of the mother body of the party. This is the same for every single political party; not only the ANC. A recent news report from Eyewitness News showed the DA has suspended five councilors in Cape Town after they voted against party directive for their preferred candidate for the chairperson of Kraaifontein. This, ironically, just after DA Federal Leader Mmusi Maimane implored ANC Members of Parliament to vote according to their conscience - and not ANC directives - during the motion of no confidence process earlier this month.

What can we do?

We need to have a hard look at our political system, and not just only restructure the system to make the branches of state more accountable to each other, but more accountable to us, the citizens!

We can only hold the state accountable during elections, every five years, and even if we do that, we have absolutely no control over what happens in South Africa beyond that. That power lies with the unelected NEC. I have previously written on this topic, and shall not repeat that sentiment.

We need academics, politicians, and civil society to start critically evaluating the health of our State and its relation to its citizenry. Our politics is unstable in an unhealthy manner. Politics must be vibrant and in constant flux, but we are politically stagnant, I argue, due to this political anomaly.