NATIONAL ASSEMBLEY

PRIVATE MEMBERS COMMITTEE

DRAFT CONSTITUTION EIGHTEENTH AMENDMENT BILL, 2006 PRESENTATION BY MANGOSUTHU BUTHELEZI, MP Cape Town: March 14, 2008

At the outset I must reiterate publicly the apologies I have already tendered in a letter I wrote to the Chairman of this Committee for my failure to attend last week's meeting on account of my Caucus having failed to inform me about it. In that letter I also wholeheartedly thanked the Chairman for her kindness shown in accommodating me by giving me this second opportunity today, and I wish now to reiterate my heartfelt appreciation.

Before entering the merits of my presentation, I wish to premise my remarks by explaining why I tabled a fully fledged Bill rather than a mere memorandum explaining the scope and objective of the intended Bill.

Our Rules provide for a two-step process in terms of which this committee, after consultation with the relevant portfolio committee, votes on the desirability of what is effectively a notional legislative initiative which still has no details. Then, through the office of the Speaker the matter is referred to the National Assembly for a vote on the desirability on such notional legislative initiative which, if found desirable, returns to this committee where, at the instance of the proposing member, is transformed into an actual Bill.

In the subject matter under your consideration both good and evil are in the details. The notion of a parliamentary system with separate heads of state and head of government has four centuries of successful experience, during which it has seen several adaptations and variations from the original Westminster system. In my own eyes some of such variations are less desirable than others and therefore knowing exactly what it is that is being proposed is relevant in assessing the desirability of this legislative initiative, hence a fully drafted Bill.

Moreover, from the reports I received from last week's meetings, it seems that the debate has already tied specific features of the separation of the two offices of Head of State and Head of Government to the desirability of this legislative initiative. For instance, concerns were expressed that the President would have merely ceremonial or titular functions, almost as if he or she were a symbolic figure.

However, if one looks at the details of the Bill I have submitted, it is clear that even though all the executive power are transferred to the Prime Minister, in my proposal the President has real and significant powers, some of which are politically charged, such as the selection of the Prime Minister. In a context in which there is no absolute majority in Parliament and a coalition is necessary, such power may significantly direct the course of future events. I could refer to other aspects of my Draft Bill, but I do not wish to overburden the simple point that reference to details may guide a decision on the desirability of the notion.

The other reason which prompted me to go through the substantial work of producing a fully fledged draft Bill lies in the urgency of the matter.

I launched this initiative when I spoke about it in the State of the Nation debate of fourteen months ago, and the matter has been discussed in various NGOs and the media. On the same basis as last week's, this Committee was unavoidably drawn into discussing the specific features of this proposal so has the debate in the rest of the country. Hence we need a fully fledged notion. There is ripeness and urgency to this debate which must now be brought to its next stage. If a proposal of this nature is to be implemented, it needs to be so before the next election, and therefore little time is left. I am keenly aware that the matter is not in my hands and that it will be for others to decide whether to take it further and at a pace in which this ought to be done.

On my part, I wanted to be sure that I have done as much as I could to

expedite the process.

I am not suggesting that what Parliament may finally choose to adopt ought to have all the features which I have suggested, but by listing all the features which ought to be considered in an operation of this nature, those who are to take the matter forward at least have a checklist of issues on which they ought to apply their mind. I, for one, am comfortable that what I have put forward is in the best interest of the country and together with my advisors have given years of thought to it. I have mainly selected solutions which have been tried and tested because I do not think that our Republic ought to take the risk of charting undiscovered lands at this critical time. It can do so by modifying the system once it has taken root and once we have a better understanding of what in it works and what does not.

For instance, during last week's debate the suggestion emerged that the President ought to be elected by the people, which is a significant departure from the classic parliamentary systems. I regard all this as being inadvisable because the election of the President would be politically charged and have the same themes as that of the political parties. Strong with a direct political mandate, the President would feel more prone and authorized to interfere in political and policy matters, which would prevent him from placing himself above party politics. Even under our present Constitution the President is not elected by the people. It would also be difficult to elect a President through a process which forces consensus on the basis of a two-third majority requirement. Even if one uses a two-tier election, the President could only benefit from a mandate of an absolute majority, while in Parliament, through repeated elections it is possible for the President to be elected with a broader majority and only with an absolute majority if a broader majority cannot be achieved.

Finally, before I argue the desirability of this legislative initiative, I wish to clear the table of another red herring. The parliamentary system of government comes in the two variations of constitutional monarchies and parliamentary republics. Their structure is very similar save for the fact that in the former the head of state has a life-long office and is chosen on the basis of hereditary rules, while in the latter the head of state is elected in one form or the other. In constitutional monarchies the head of state may have powers which range from being merely symbolic to being significant and powerful.

Therefore, for our purposes, we should not concern ourselves about whether reference is made to a constitutional monarchy or a parliamentary republic, as both systems are valuable comparisons for our deliberations. It is more significant to find references in a context similar to ours, which is one characterised by a rigid constitution which is the supreme law of the land.

I wish to commence my presentation of the merits of this legislative initiative with the point that the separation of the office of Head of State and Head of Government strengthens our Constitution and its democracy by adding an additional system of checks and balances. One of the functions of the President is that of being a guarantor of the Constitution not from a judicial viewpoint but from a political and institutional one. The most salient aspect of this power expresses itself in the assent of laws. As it is now, when a President assents a law, he needs to perform a preliminary review of its constitutionality which may lead to remanding the law to Parliament for further consideration. President Mandela utilised this power on a couple of occasions, but 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.

Throughout the world the parliamentary system is the most prevalent and in its most classic form is implemented in countries such as Canada, Spain, Portugal, United Kingdom, Ireland, Belgium, Germany, Poland, Austria, the Czech Republic, the Slavic Republic, Italy, Sweden, Norway, Denmark, Finland, Netherlands, Turkey, Greece, Macedonia, Bosnia-Herzegovina, Iraq, Israel, Somalia, India, Pakistan, Bangladesh, Thailand, Malaysia, Cambodia, Japan, Indonesia, and New Zealand to mention a few.

In South Africa we have a tradition of separation between a Head of State and the Head of Government until 1983. At the World Trade Centre negotiations, I suggested that it be maintained because it best served democracy and strengthens the Republic. I do not think that the matter was sufficiently considered there, where the prevailing concern was that of breaking away with the past and empowering a President who could be the symbol of our victory over apartheid and be liberation personified.

As our democracy grows, we need to de-personify our institutional life so that the strength of our institution may make up for any flaw which its incumbents may have. Like in other countries, South Africa will have some Presidents, Prime Ministers or Ministers who are better than others and our Republic must remain strong even when the incumbents are weak. Throughout the world and history great evil has befallen on democratic and peaceful nations whenever greater reliance was placed on the people in power than on the strength on the offices they served.

It is for this reason that I look on this initiative as having nothing to do with party politics, I have not introduced it on behalf of my political party, nor have I asked my political party to endorse it.

There is nothing in it for me or for my party. I have introduced it as a concerned South African who has spent sixty years of his life studying, reflecting and suffering an internal turmoil over the fundamental quest on how to create a system of government which will support democracy and our social and economic progress. I never doubted that liberation would one day come, even though I was not sure whether it would be in my lifetime. But I never achieved the same certainty that our liberation would enshrine a long-lasting democracy which in turn can deliver freedom and prosperity for all. The latter is a much greater challenge which requires greater energies than what we spent in our liberation struggle. There are too many examples where the hopes of liberation were betrayed by an unsuccessful system of government.

Because of these enormous challenges ahead, the office of the Head of Government will have to bear increasing pressure, tensions and controversies. It is going to be the lightening rod of the foreseeable season of storms which our Republic will have to endure. Our social problems are enormous and cannot be addressed without controversies or in a manner which will satisfy everyone at all times. An effective Head of Government will need to have the strength and institutional latitude to be unpopular at times. If he or she also carries the office of Head of State, whatever turmoil affects the Government of the day, it will engulf the whole of the Republic discrediting our entire systems of government in the eyes of our people. Even at the worst times, it is important that people have a reference in an office and in a person who can be detached from the trouble of the day and the heat of political controversy.

Furthermore, a society sailing through the turmoil of divisions may benefit from a reference point who is above parties and is trusted and respected Fby all. In many respects former President Nelson Mandela and other leaders have performed such a role in the first score of our Republic. However, it is important that such role be now

institutionalised. It can be noted that South Africa always had a

Prime Minister before recently adopting the executive system, while after 1994 it benefitted from a virtual separation between Head of State and Head of Government. Although we adopted the executive presidency, the actual system worked as if there were separate Heads of State and Government. President Mandela rarely presided over Cabinet and Deputy President Mbeki presided over most Cabinet meetings and conducted the day-today administration of the State, to the extent that President Mandela often jocularly remarked that he was the mere de jure President while the de facto President was H.E. Mbeki. That gave room to President Mandela to attend to the complex work of consolidating reconciliation in our country, which perhaps he would not achieved had he been always acting as a Head of Government.

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. By definition all such institutions are called upon to play an antagonistic role to the government of the day, by judging the constitutionality of the law or enquiring into the legality, efficiency and appropriateness of government's actions and policies. For these institutions to be effective, they must not be the expression of, and beheld to those whom they are called upon controlling and keeping under check and balance.

There is plenty of examples, sadly many in our own continent, where democracies have failed because those who were entrusted for their protection were too close and beholden to those who held the reins of Government.

Politics moves in seasons, and it is important that the Head of State and the Head of Government are not the expression of the same season.

The term of office of the Head of State should not coincide with that of the legislature which elected him so that the Head of State can be a bridge between one season and the next one. The impartiality and the strength of the Head of State would be reinforced by providing him with a longer term and with the independence which comes from knowing that upon completion of that term he cannot serve another term and cannot aspire to any other political office under the Republic. The President should act not to secure his political future but his role in history.

The value of parliamentary democracy as opposed to an executive system of government shows more clearly a time of crisis and during extraordinary circumstances. For instance, when in 1976 the entire Spanish Parliament and Cabinet were kidnapped and held prisoner in Parliament by a renegade group of soldiers, the Head of State could mobilise the balance of the defence forces to rescue the newly fledged Spanish democracy and he did so without usurping or taking upon himself any power which he did not have under the Constitution. In fact, the role of a Head of State is often described as becoming much stronger in the time of crisis by virtue of the very function he exercises and inherent powers and without resorting to extraordinary or emergency powers.

Conversely, one can just wonder how many errors and evil deeds performed under the stewardship of executive presidencies could have been prevented had a parliamentary democracy been in place. One thinks about the United States, ostensibly the world's most powerful democracy, in which Congress did not have the resources or authority to question the presidential declaration of war against Iraq made exclusively on the ground of Iraq holding weapons of mass destruction. In a parliamentary democracy war would have to be declared by the President rather than the Prime Minister and perhaps the President would have taken a hard and critical look on the grounds on which war was meant to be waged. Many hours could be spent citing many examples which support the proposition that with a parliamentary democracy there is everything to gain and nothing to lose. Institutionally speaking, there is no loss in abandoning the executive presidency.

In fact in a parliamentary democracy the Prime Minster himself is made stronger. For one thing he is freed from a huge number of time demanding commitments which force him to attend to functions both in South Africa and abroad, which limit his capacity to deal with the serious social and political issues of the day. One can think of how President Mbeki was criticized for the sterling work he did in launching NEPAD and the African Union on the ground that he did not sufficiently attend the problems at home.

Secondly, by not being the Head of State, he could be more forceful in taking political positions antagonizing opponents and generally speaking, getting the job done. No-one would suggest that the German Chancellor, or the British, Italian or Australian Prime Ministers are in any way weakened because of the presence of a separate Head of State.

If anything, the Head of State covers their flanks and backs in many political and institutional respects in what becomes a silent partnership in governance.

Admittedly the overwhelming number of African democracies is based on an executive presidency. This may be reason not to follow that trend and seek better solutions, for almost all African executive presidencies have highlighted problems and their democracies have suffered crisis.

Our present Constitution has already not followed African trends in the hope to learn from 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. As often the rest of Africa looks up to South Africa to find solutions to its problems, in this respect we may have the responsibility of leading rather than following.

One could spend many hours on this subject which has been covered by a plethora of books, and we could spend years to discuss it. In the end, as political leaders, we need to make a decision also with our guts.

Under the present circumstances of our Republic and in light of future foreseeable tensions and conflicts, I think most members of our Parliament will feel it in their gut that what it is before us is eminently desirable. For this reason I plead with this Committee to find my legislative initiative to be desirable and move it to its next stage so that this important debate may continue.