Executive decision-making and the Covid lockdown loop as the Constitution turns 25

First published in the Daily Maverick 168 weekly newspaper.

That’s not to say things can’t change, particularly when it comes to what seems to be virtual-platform fatigue. The last Cabinet meeting in late April actually had ministers in person in the same room, physically distanced and masked. It was an Instagrammable moment for some, like social development portfolio boss Lindiwe Zulu, as Government Communication and Information System snapped the photos.

Cabinet meetings have been getting more attention lately. The regular cycle of meeting every other Wednesday, followed by a public briefing or statement, has been cranked up.

Then, sight seemed lost that Cabinet is South Africa’s executive decision-maker amid pandemic war talk, the creation of a coronavirus command council and securocrats’ push into constitutional democratic decision-making through the National Joint Operational and Intelligence Structure (NatJoints), a collection of spooks, soldiers and cops that’s not established in law or regulation and does not account to Parliament, or anywhere else.

It’s important to repeat. According to the Constitution, SA’s executive decision-maker is Cabinet. That’s the president, who heads Cabinet, and the ministers (s)he appoints.

While it’s refreshing to note a semblance of regular Cabinet meetings and constitutional democratic decision-making, this does not mean the command council and war talk is done. Far from it.

Over the past two weeks at least three ministries have publicly made references to the say-so of NatJoints and the command council in decisions pertinent to basic education, health and sports.

On 14 April, Health Minister Zweli Mkhize told MPs, “The National Coronavirus Command Council [NCCC] accepted the recommendation to publish the draft regulations for the no-fault compensation fund for public comment”, before final regulations were gazetted on 22 April.

Meanwhile, on 15 April, Sport, Arts and Culture Minister Nathi Mthethwa told SAfm Sport On listeners of a possible return of spectators to stadiums after a proper analysis by the Department of Health and NatJoints. And a Department of Basic Education official told SAfm Sunrise on 21 April how NatJoints is preparing submissions to the command council on the full reopening of schools.

It seems ministers individually, but seemingly also collectively as Cabinet, have readily conceded much space to NatJoints and the NCCC.

The NCCC, officially a Cabinet committee, is only meant to make recommendations for Cabinet to consider. But as all ministers are on the command council, decision-making can get quite blurry. This is especially the case because some government decisions are announced outside the two-weekly Cabinet cycle, and in the absence of alerts to special Cabinet meetings.

All this may seem pedantic. But tracking how governance decisions are made within the national executive, and where, is central to constitutional democracy and accountability, be that in court or at the ballot box.

It would do well for Parliament and its committees, and through MPs’ questions, to have a closer look at executive decision-making. Especially as the National Assembly oversees and holds to account the executive, according to section 55 of the Constitution.

Substantive, qualitative oversight will be living honour of the Constitution adopted by legislators on 8 May 1996.

“Let us all give our country its true birth certificate. The people of our country expect no less of us,” said Cyril Ramaphosa, then chairperson of the Constitutional Assembly, today South Africa’s president.

A quarter of a century after that defining vote in the House, hard questions remain. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.