Who is in charge – the NCCC or the Cabinet? Ramaphosa unveils the blurring of democratic practice at the highest level

10 Jun 2020

President Cyril Ramaphosa has, in parliamentary replies, effectively acknowledged a parallel system of governance – with the National Coronavirus Command Council blurring the lines of executive governance which South Africa’s Constitution assigns to Cabinet.

The National Coronavirus Command Council (NCCC) has been the public face of South Africa’s Covid-19 responses since the day the National State of Disaster was declared on 15 March.

In the background, but also occasionally in the public eye, is NatJoints – the National Joint Operational and Intelligence Structure – which brings together police, military and spooks in a structure not established in either law or regulation. NatJoints’ role of drafting plans for the NCCC and “operationalising” NCCC decisions has emerged over the past two months in various defence and police parliamentary committees. And now, also in the presidential parliamentary replies.

Mostly M.I.A. in this State of Disaster has been the Disaster Management Centre and its provincial counterparts, which, under the Disaster Management Act, coordinate the response to a disaster. Also largely M.I.A. has been the Cabinet.

And so when DA MP Glynnis Breytenbach fired off parliamentary questions about the NCCC – one can’t lie or misrepresent in those parliamentary oversight tools – the replies are telling.

NCCC2

Asking Ramaphosa under what law, regulation or constitutional provision the NCCC was established, the president said it was a cabinet committee and that it makes recommendations.

“The National Coronavirus Command Council (NCCC), originally known as the NCC, was established as a committee of Cabinet by the Cabinet in its meeting of 15 March 2020,” says Ramaphosa in parliamentary reply 725, adding:

“The NCCC coordinates government’s response to the coronavirus pandemic. The NCCC makes recommendations to Cabinet on measures required in terms of the national state of disaster. Cabinet makes the final decisions.”

But that is not how Ramaphosa put it to South Africans in at least two of his Covid-19 addresses to the nation.

On 23 March, in announcing the initial 21-day hard lockdown, the president said:

“… the National Coronavirus Command Council has decided to enforce a nation-wide lockdown for 21 days with effect from midnight on Thursday 26 March. This is a decisive measure to save millions of South Africans from infection and save the lives of hundreds of thousands of people.”

And in his 9 April address to the nation, Ramaphosa announced the Covid-19 lockdown extension as follows:

“After careful consideration of the available evidence, the National Coronavirus Command Council has decided to extend the nationwide lockdown by a further two weeks beyond the initial 21 days.”

These presidential statements to South Africa would have been in line with public messaging, which revolves around the NCCC, steeped in the narrative of war against an invisible enemy – coronavirus. It is this public messaging that has had ministers talking of taking their matters to the NCCC for a decision – of ministers, now slotted into NCCC clusters like economy and security, hosting briefings.

However, this stands in contrast to long-established cabinet practice that decisions and recommendations by interministerial committees (IMCs) or cabinet subcommittees – or even the appointment of a director-general – must go for approval to the full cabinet at its meetings every two weeks.

This is part of the ANC’s policy of collective responsibility.

The emphasis on NCCC decision-making changed only after Nazeer Cassim (SC) and Erin-Dianne Richards wrote to the Presidency about their concerns over the constitutionality of the NCCC. And while the response by director-general in the presidency, Cassius Lubisi, seemed dismissive, Ramaphosa, in his last address to the nation on 24 May, said: “… Cabinet has determined that the alert level for the whole country should be lowered from Level 4 to Level 3 with effect from 1 June 2020.”

Not quite in line with public messaging around the lockdown.

What emerges from Ramaphosa’s parliamentary reply 726 is that the NCCC is a parallel governance structure, with lines blurred regarding cabinet, South Africa’s constitutional executive decision-maker.

When the command council was established, it included 20 of the 28 cabinet ministers. Left out were, among others, the ministers of public enterprises, labour and employment, small business development, arts, culture and sports and women, children and people with disabilities.

“Other members of Cabinet were subsequently invited to attend NCCC meetings. It is supported by the Cabinet Secretariat and the National Joint Operational and Intelligence Structure (NatJoints),” said Ramaphosa in his 726 parliamentary reply.

Further crucial detail on the NCCC emerges in a parliamentary reply dated 5 June from Minister in the Presidency Jackson Mthembu to IFP chief whip Narend Singh.

“However, after two meetings of the NCCC, the president decided to invite the rest of the Cabinet as it became clear that they too were crucial to the national response.

Does Cabinet sit as the NCCC three times a week, and then meet once a fortnight to make other decisions, for example, to give final approval of a director-general’s appointment?

“Every meeting of the NCCC has a standing item on the health response, where the minister of health, on the basis of the advice he receives from health experts, advises the NCCC on all relevant public health matters related to the Covid-19 pandemic,” said Mthembu in his parliamentary reply.

“All NCCC matters that have policy implications are referred to Cabinet for decision making.”

Ramaphosa’s letters establishing the NCCC, dated 18 March, and then on 19 March including the remaining cabinet ministers, were attached to Mthembu’s parliamentary reply.

The 18 March letter is signed off, “Given the urgent need to address this pandemic, it was resolved that the National Command Council will meet three times a week.” The following day’s letter simply said the NCCC would meet three times a week.

But as South Africa’s Covid-19 response ranges from the provision of water tanks to communities and schools, to financial support for small businesses, to intelligence collection and policing and the deployment of 73,000 soldiers, the question has to be asked – when exactly is Cabinet sitting?

Does Cabinet sit as the NCCC three times a week, and then meet once a fortnight to make other decisions, for example, to give final approval of a director-general’s appointment?

The increasing worry is that the pandemic is being used to push agendas – whether they be a securocrat crackdown or macroeconomic control – within a weak public administration that has long struggled with implementation.

In a State of Disaster, governance occurs under regulations signed off by Cooperative Governance Minister Nkosazana Dlamini Zuma. But individual ministers also make regulations and issue directives to control anything from taxi occupancy levels to what items of clothing may be sold.

These regulations and directives are made through a ministerial pen, without the usual public consultation and participation processes, and, crucially, without parliamentary oversight and engagement by the national legislature. It has always been a concern that some ministers may not want to relinquish their new powers.

Ramaphosa’s parliamentary responses suggest that the NCCC is a cabinet committee that makes recommendations for final decisions by cabinet, regardless of public messaging that the NCCC is wholly in charge. From the parliamentary replies, it also remains unclear how the NCCC functions as a cabinet committee when the whole of Cabinet is the NCCC.

This has blurred the government's decision-making processes. More clarity and transparency are needed for the protection of South Africa’s hard-won constitutional democracy. DM

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