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[1993] ZAConAsmRes 23
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Eleventh Report of the Technical Committee on Constitutional Issues to the Negotiating Council [1993] ZAConAsmRes 23 (20 August 1993)
EMBARGOED UNTIL TABLING IN THE NEGOTIATING COUNCIL
1.1 In our Fifth Report we drew attention to decisions that needed to be taken for the purposes of drafting the Chapter of the Constitution dealing with the executive. We requested participants to respond to this request and subsequently the Negotiating Council also asked them to do so by 12 July 1993. Although some of the participants have provided information relating to their constitutional proposals, (some in the form of draft legislation) we have not received responses to the specific questions raised by us. Some of the drafts that we have received deal with the "final constitution" and not the "government for the transitional phase" which we were instructed to deal with (See: Resolution 21). 1.2 The issues raised in our Fifth Report have not been the subject of debate
in the Negotiating Council. The participants hold different
positions with
regard to these issues, which have not been resolved by the Council. In the
circumstances we do not have sufficient
clarity concerning the "government for
the transitional phase" to enable us at this stage to present detailed texts for
debate in
the Council. 1.3 As there are still important issues of principle that have to be resolved by the Negotiating Council, before a detailed text dealing with a "government for the transitional phase" can be presented to the Council, we identify these issues and make suggestions as to ways in which they could possibly be dealt with.
2.1 It seems generally to be accepted that the head of state should be an
executive president. 2.2 In proposals submitted to us by participants who favour a "one stage
process" there is support for a directly elected president.
None of these
submissions address the question whether such a procedure would be appropriate
for the election of a president for
the transitional period. 2.3 The proposals that deal with a constitution for a transitional period
favour a procedure whereby the President is indirectly elected
by the members of
the national legislature. 2.4 Factors which favour an indirect election, are: (a) A ballot for the election of the President in a direct election conducted
at the same time as the election for the National Assembly
would make the
election more complicated. (b) If there are several candidates in a direct election for the President,
there is a risk that run-off elections might be necessary.
This would be
costly, and in the circumstances presently existing in South Africa,
undesirable. 2.5 We require instructions from the Negotiating Council on the procedure
that it favours.
3.1 The conventional way in which a cabinet is appointed by an executive
president is for the President to determine the portfolios
and to make the
appointments at his or her discretion. 3.2 It has been suggested, however, by some participants that there should be
a multiparty cabinet during the transition. This could
be left to be dealt with
by the political process in the ordinary way, or it could be catered for by a
constitutional provision to
the effect that parties holding more than a defined
percentage of seats in the National Assembly are entitled, but not obliged, to
be allocated seats in the cabinet. 3.3 The question of proportional representation in the executive during the
transitional period is raised in our previous reports,
and we made provision for
this in the draft text dealing with SPR executives. 3.4 For the purpose of facilitating the debate in the Negotiating Council we
make the same assumption, namely, that the Constitution
for the transitional
period should make provision for proportional representation in the
cabinet. 3.5 This raises a number of issues concerning the way in which appointments
should be made to the cabinet and the way in which it
should function. The
tension that exists is on the one hand between prescribing procedures conducive
to achieving consensus, both
in regard to the composition of the cabinet and the
taking of decisions, and on the other hand in not prescribing procedures that
could lead to the paralysis of executive government. 3.6 A number of different structures have been considered by us. We deal
with these possible structures later in this report. But
before doing so we
consider it necessary to refer to other related issues.
4.1 A possible procedure for an indirect election of the President would be for the members of the National Assembly to elect one of their number as the President. Having been elected, the President would become both head of state and head of government. The President would then withdraw from the National Assembly, and be replaced by a member chosen from the relevant party list. 4.2 This would serve two purposes. First, it will enable the President to
avoid the hurly burly of parliament, and to play a unifying
role at a time when
national reconciliation is likely to be a high priority. Secondly, it will free
the President to attend to the
executive affairs of state outside of parliament,
and to perform the ceremonial functions that go with the office of
president.
5.1 It has been suggested that Cabinet Ministers need not be appointed from
amongst the members of parliament, and that if members
of parliament are
appointed as Ministers they should resign their seats. 5.2 This would bring about a clear separation of powers between the
legislation and the executive, but could make Ministers less accountable
than
they would be if they were to remain or become members of parliament answerable
to it.
7. SHOULD THERE BE A DEPUTY PRESIDENT/VICE PRESIDENT ? 7.1 A deputy president/vice president could be elected on the basis of majority support or on the basis that he or she should come from a party other than the President's party. 7.2 A deputy president/vice president could alleviate the heavy responsibilities of the President. If chosen from a party other than the President's party, he or she may play a unifying role during the transitional period, provided that the respective powers and functions of the President and the Deputy President/Vice President are structured in such a way as to avoid conflict. 7.3 An objection to creating such an office is that it could have an impact
on the question of succession should that ever arise as
an issue. That
difficulty could be addressed by a provision that the Deputy President / Vice
President will act for the President
during his or her absence, but will not
necessarily succeed to the office of president if it should become vacant. The
vacancy could
be filled by a new election in the National Assembly.
8.1 We have considered a number of different ways in which a Cabinet might be
appointed. Common to all of them is that the Constitution
provides that all
parties with 5 % or more of the seats in the National Assembly are entitled, but
are not obliged to accept, positions
in the cabinet in proportion to the seats
held by them in the National Assembly. The threshold is, however, an issue that
should
be debated in the Negotiating Council. 8.2 The question as to how the cabinet should be composed and portfolios allocated is a political issue. For the purposes of facilitating debate in the Council on this issue, we have formulated examples of possible structures, which we set out below. These are merely examples and are not intended as a complete list of all the possibilities. Different features of the various examples can also be combined to create different models. 8.3 EXAMPLE 1 The President appoints the members of the cabinet, allocating portfolios
proportionally to the parties entitled to participate in
the cabinet. The
President is required to secure the agreement of the Deputy President/Vice
President or the leaders of the participating
parties in regard to the way in
which the appointments are to be made and portfolios allocated. Implicit in this model is the risk of deadlocks when the President attempts
to compose the cabinet. If agreement has to be reached
on the allocation of
portfolios with the Deputy President or the leaders of the parties entitled to
seats in the cabinet, the President
could be obliged to meet their requirements
in order to avoid a deadlock and the possibility of paralysis of government. If
this
were to be a requirement, the President's position would be weakened, and
the Deputy President, or leaders whose consent is necessary,
could in effect
dictate the way in which portfolios are allocated. 8.4.1. The President consults with the leaders of the parties entitled to seats in the cabinet in regard to the composition of the cabinet, and then appoints a Prime Minister and other members of the cabinet. The President allocates portfolios on the basis of proportionality to those parties that choose to participate in the cabinet, after taking into account the views expressed by the leaders with whom consultations have been held. 8.4.2. The appointment of persons to the portfolios allocated to the "minority parties" is made by the President in consultation with the leaders of such parties. 8.4.3. The President is required to terminate the appointment of a Minister
from a minority party at the request of the leader of
such party, or if there is
a vote of no confidence in the Minister by parliament. 8.4.4 Vacancies are filled in accordance with the provision of paragraph 8.4.1.
This model vests in the President effective power to compose the cabinet.
The President is, however, obliged to accommodate all parties
with more than 5 %
of the seats in the National Assembly who wish to join the cabinet, and to
choose members acceptable to the parties
to which they belong. Minority parties
would be in a position to make demands for particular portfolios if their
support is necessary
to secure the majorities needed by the President's party to
enable it to govern, or as a quid pro quo for the benefit the governing
party
would derive from having their support. It strengthens the hand of the
President and lessens the risk of deadlocks arising
over the allocation of
portfolios. 8.5 EXAMPLE 3 8.5.1 The President in consultation with the Prime Minister formulates the
broad terms of the policy that the government will follow. 8.5.2 The Prime Minister consults with each of the Ministers in regard to the particular policy to be followed by his or her department, and with the approval of the President, formulates policies for such departments. 8.5.3 The approval of Parliament (possibly by a specified majority) to the
government's policy must be secured within a prescribed
time, failing which the
cabinet is dissolved and a new cabinet appointed. 8.5.4 A Minister is obliged to comply with the approved policy and can be removed from office by the President if he or she fails to do so, or if a vote of no confidence in such Minister is passed by Parliament (possibly by a specified majority). Vacancies are filled from the same party.
This makes the cabinet and its policy directly accountable to Parliament and
requires the government and individual Ministers to adopt
and implement policies
that have the approval of Parliament. 8.6.1 The President consults with the leaders of the parties entitled to
seats in the cabinet in regard to the policy to be pursued
by the cabinet, the
allocation of portfolios, and the appointments to be made. 8.6.2 The President must compose a cabinet committed to a known policy and do so in a way which will secure the participation of parties representing at least a specified majority of the members of the National Assembly. Alternatively to 8.6.2: 8.6.3 The President is obliged to secure the approval of a specified majority
of the National Assembly to the proposed policy and
the composition of the
cabinet. If the necessary support of the National Assembly is obtained, the
cabinet is confirmed. If it
is not, policy changes which may involve changes in
the composition of the cabinet, will have to be made. 8.6.4 All parties entitled to seats who are willing to adhere to the proposed
policy, and accept the allocation of portfolios made
by the President, are
entitled to a proportional allocation of portfolios. 8.6.5 If at any time the necessary support is lost, the cabinet will be dissolved and the President will have to form a new cabinet which is able to command the necessary support. If the President is unable to do this Parliament will be dissolved and new elections held.
This model seeks to replicate the model of a voluntary coalition by setting a specified majority as a condition for governing. If the President's party is unable to command that majority on its own it has to find coalition partners. It can do this in any way it chooses, though places must always be offered to the parties entitled to cabinet seats for as long as they comply with the policy formulated by the President. This will lead to bargaining which will be reflected in the allocation of portfolios and the policy that the government adopts. Disagreements over policy at any time thereafter can lead to the collapse of the government and possibly to new elections. If the majority party has to secure outside support to enable it to obtain the prescribed majority, its position is weakened, but this does not necessarily lead to paralysis of government. It enables the cabinet to function as coalitions ordinarily do, and to bargain for the support that is required, without necessarily having to meet the demands of any particular party or parties. It would facilitate decision making in the cabinet which could function in the normal way of coalition cabinets. 9. TAKING DECISIONS IN THE CABINET 9.1 Decisions in the cabinet could be taken in various ways depending upon political decisions to be made concerning the relationship between the participants in the cabinet. The possible mechanisms include: a) Decisions which have the support of a majority of the cabinet. b) Decisions which have the support of a specified majority of the cabinet. c) Decisions which are supported unanimously by the cabinet. d) Decisions which are supported by particular groups within the cabinet.
9.2 The way in which decisions are to be taken could be prescribed in the
Constitution, or could be left to be formulated as part
of the policy guidelines
accepted by cabinet members when they join the cabinet, or determined by them
after the cabinet has been
composed.
Multi-party government calls for co-operation between parties who enter the government. Inherent in all multi-party governments is the risk, in varying degrees, of weak government, or of the collapse of government and the possibility of new elections. In extreme cases there is even the risk of paralysis of executive government. The securing of a balance which promotes co-operation and avoids a possible paralysis of government, ought to be kept in mind in the debates on the form of government to be adopted. In this regard, the right, or the obligation to call elections if deadlock persists can not only serve to break deadlocks, but also to put pressure on the parties in the cabinet to reach the compromises needed for effective government.
ANNEXURE TO THE 11th REPORT (CONSTITUTIONAL ISSUES) Head of State 1 . The President shall be the Head of State. Election of the President 2. (1) The President shall be elected within 15 days of the general election by the Electoral College consisting of all the members of the National Assembly (and the Senate) in the manner provided for in Schedule 8. (2) The Electoral College shall be presided over by the Chief Justice or a judge of appeal designated by him. (3) No person may be elected as President unless he or she has been elected to the National Assembly. (4) On being elected, the President shall vacate his or her seat in the National Assembly and the political party to which he or she belongs, shall be entitled to fill the vacancy by nominating, according to the order of preference, a person on such party's election list compiled for the general election, or if there is no such person, by nominating any member of such party. Oath or affirmation
Tenure of office
(a) to assent to, sign and promulgate bills duly passed by
Parliament; (b) in the event of a procedural shortcoming in the legislative process, to
refer a bill passed by Parliament back for further consideration
by
Parliament; (c) to convene meetings of the Cabinet, including extraordinary meetings for
the resolution of disputes among the members of the Cabinet; (d) to refer disputes of a constitutional nature between political parties
represented in Parliament or between organs of the State
at any level of
government to the Constitutional Court or other appropriate institution or body
for resolution; (e) to make such appointments as he or she may deem fit under powers
conferred upon him or her by this Constitution or any law and
to exercise such
powers and perform such functions as may be conferred upon or assigned to him or
her in terms of this Constitution
or any other law; and to proclaim referenda
and plebiscites in terms of this Constitution or any other law. (2) The President shall be competent, after consultation with the Cabinet and
subject to the provisions of this Constitution and any
other law, to - (a) confer honours on citizens, residents and friends of the Republic in
consultation with interested and relevant persons and institutions; (b) appoint, accredit, receive and recognise ambassadors, plenipotentiaries,
diplomatic representatives and other diplomatic officers,
consuls and consular
officers; (c) negotiate and sign international conventions, treaties and agreements;
and (d) pardon or reprieve offenders, either unconditionally or subject to such
conditions as he or she may deem fit and to remit any
fines, penalties or
forfeitures.
(2) If the President, resigns, or is removed or ceases to hold office for any
reason, the vacant office of President shall be filled
in the same manner as the
first President was elected.
(2) Ministers shall administer their departments in accordance with the
policy determined in terms of this section. (3) If a Minister fails to administer the department for which he or she is
responsible in accordance with the policy determined in
terms of this section,
the President may either require the Minister concerned to bring the
administration of such department into
conformity with the agreed policy, or,
after consultation with the Minister and the leader of his or her Party, dismiss
the Minister. (4) If Parliament is not satisfied with the way in which the government is
functioning, or the way in which a Minister administers
a department for which
he or she is responsible, it may express its disapproval through a vote of no
confidence in the government,
or in the Minister, as the case may be. (5) If a vote of no confidence is passed in a Minister the President shall
dismiss the Minister. The Cabinet 10. (1) The Cabinet shall consist of the President (,the Deputy President,
the Prime Minister) and the Ministers appointed by the President in
accordance with the provisions hereof. ((2) The President shall appoint a Prime Minister who shall be responsible
,for the management of the Cabinet and, in the absence of the
President, shall
be accountable to Parliament for the policy of the government.) (3) A party holding at least 20 seats in the National Assembly shall, subject
to (the details of the model adopted), be entitled to be allocated
Cabinet portfolios in proportion to the number of seats held by it in the
National Assembly relative
to the number of seats held by the other parties
represented in the Cabinet. (4) The President shall consult with the leaders of the parties qualified to
hold Cabinet portfolios in terms of subsection (3) regarding
the portfolios to
be allocated to each party. (5) The leader of each of the parties qualified to hold Cabinet portfolios in
terms of subsection (3), shall designate persons in
consultation with the
President to be appointed as Ministers. (6) The President shall terminate the appointment of any Minister if
requested to do so by the leader of the Party from which such
Minister was
chosen. (7) In the event of a vacancy in the Cabinet, occurring in the manner
described in subsection (5), or as a result of the death or
resignation of a
Minister, the President shall appoint another person from the ranks of the
qualifying party on the recommendation
of the party leader
concerned.
12. (1) All ministers shall be accountable individually for the administration of the departments allocated to them, and collectively for the administration of the work of the Cabinet both to the State President and to the National Assembly. (2) During their tenure of office, Ministers may not take up any other paid employment, engage in activities inconsistent with their position as Ministers, or expose themselves to any situation which carries with it the risk of a conflict developing between their interest as Ministers and their private interests. (3) No members of the Cabinet shall use their positions as such or use information entrusted to them confidentially as such members of the Cabinet, directly or indirectly to enrich themselves or their families.
(2) Decisions of the Cabinet will, in so far as it is attainable, be taken by
consensus, in the absence of which, and if any Minister
requests a vote, by a
(specified) majority of the Ministers present and voting. (3) In the event of a (the specified) majority not being achieved in
the Cabinet regarding the national budget, financial matters and national
security, an absolute majority
of the total number of Ministers shall be
sufficient, provided that both the President and the Deputy President are in
favour of
such decision. (It may be necessary to develop further deadlock-breaking
mechanism.) Rights and duties of President, the Deputy President and Ministers in
Parliament
(2) The National Assembly and the Senate may by resolution summon the
President, the Deputy President (and any Minister) to attend
any session of such
House and require him or her to reply to questions in the
House. |