The constitution of the Seventh Administration has encountered delays as the signatories of the Statement of Intent (SOI) struggle to find each other. These consultations are guided by the SOI, which has legally bound the 10 political parties who signed it.
Since his inauguration, all the Executive power has rested with President Cyril Ramaphosa. However, South Africans are eagerly awaiting the announcement of the Cabinet and by extension, the Executive.
The President still has a Constitutional mandate but to what extent does the Statement of Intent dictate how the President can exercise his Constitutional duties?
The Statement of Intent is a seven-page document that seeks to set out how parties that form part of the Government of National Unity (GNU) will work together. It has been a week since President Cyril Ramaphosa was inaugurated and he is expected to be guided, to some extent, by this agreement when deciding on his Executive.
However, barely two weeks since the document was signed, it has reportedly created rifts between parties that are supposed to form an inclusive government. The two largest parties in the GNU are reportedly butting heads on the composition of the Executive as consultations continue.
A leaked letter from the DA indicated that the party wanted the position of the Deputy President, 11 ministerial positions as well as its own deputy ministers and directors-general in strategic portfolios.
Clause 17 of the Statement of Intent signed by both parties reads, that while recognising the President’s prerogative to appoint members to his Executive, such appointments should be done in consultation with the leaders of the respective parties.
ANC Secretary-General Fikile Mbalula says, “With respect to political parties, it will be done in consultation and engagement with the President in respect to the prerogative of the President. The government that the President is going to constitute will be reflective of the principle of the Government of National Unity. So the detail of it, I want to leave it to him because there is a principle of a prerogative that belongs to him that must not be diluted or undermined.”
This is the correct interpretation of Clause 17 according to Legal Analyst, Reitumetsi Phiri. Phiri says the President’s prerogative in appointing members of the Executive remains Constitutionally guaranteed.
According to the Constitution, the President appoints the Deputy President and ministers, assigns them their powers and may dismiss them.
Phiri says that while the President is expected to consult, he may still exercise his prerogative as he is not a party to the Statement of Intent.
In as much as there are obligations on him to consult with the other parties insofar as the composition of the Cabinet is concerned and to ensure that the parties are broadly reflected in that Cabinet, the Statement of Intent makes it clear that his prerogative remains undisturbed and he may make that decision or those decisions within his prerogative.
So insofar as the conversation with the DA, which is ongoing, is concerned, that is up to the President to take into account whatever their wishes may be, provided of course that he makes it clear that he still has his prerogative and he has to act within his constitutional prerogative.
Clause 19 (3) of the SOI has also been read differently by both parties. According to the clause, sufficient consensus exists when parties to the GNU, representing 60% of seats in the National Assembly, agree.
The DA’s Federal Chairperson, Helen Zille, argues that this means the ANC will need the buy-in of the second-largest party to reach the 60% consensus.
“We will represent at least 30% of the seats in the Government of National Unity. Not 20, 30! The ANC will represent at least 60% of the GNU but you’ve got to do it looking at all the parties that are going to be in the GNU. Without the Democratic Alliance, the ANC can’t reach 60% of the seats in the National Assembly occupied by the GNU parties.”
Zille adds: “How this will work given the ideological differences of the two parties, remains to be seen. The largest party has been at the receiving end of backlash for the agreement, given how much power the right-leaning party is perceived to have in the agreement.”
And, Phiri adds, some parties may be excluded from the consensus decision-making by the GNU provided they are consulted and given the platform to ventilate their views. Despite this, all 10 parties are bound by the document and the contents thereof.
“The SOI is indeed binding on each of the parties to the GNU. They have each expressed, overtly, that by signing that particular SOI, they intend to be bound by what it says and the contents thereof insofar as they create obligations for them and rights that they may have as against the political parties. These rights and obligations are created in areas of working together where the parties have agreed that for instance, all of their interactions will be in good faith. So, it means that at the very least when these parties interact within the context of government all these interactions have to be in good faith. Over and above that they’ve agreed on what the basic priorities are going to be for Government, the manner in which a policy agenda will be set and the modalities with how they will work through government.”
There is no Constitutionally-mandated time frame that dictates a deadline by which the President should abide when putting together his Cabinet. The President is yet to make his announcement and anticipation is mounting on who will form part of the 7th administration given the latest disagreements between some of the parties.
