Mbeki must subscribe to separation of powers

THE legal battles between President Thabo Mbeki and his former spy chief, Billy Masetlha, are reaching interesting, if disturbing, proportions. Mbeki is reported to be making an argument in his court papers to the effect that, in reviewing executive decisions, the courts must respect the separation of powers as it is enshrined in our constitution.

He is reported to be arguing that courts do not necessarily have the wisdom to make rulings on highly sensitive political decisions made by the executive arm of government. And he is reported to be arguing that a close scrutiny of his reasons for sacking Masetlha might be a threat to our national security.

Well, about the wisdom of our courts, the less said, the better. Courts, after all, are the playground of those talented ladies and gentlemen who are endowed with the rare ability to argue persuasively, with equal passion, and with a clean conscience, on both sides of any proposition.

Regarding the doctrine of the separation of powers, I take the view that it was not evolved for the purpose Mbeki is trying to use it for – quite the contrary! The doctrine evolved in a social milieu where the king made laws, interpreted them and enforced them.

When the political philosophers of old propounded the doctrine of trias politica, I think their arguments were very clear. They argued that in the interests of democracy, there had to be a separation of powers.

Those who make laws – that is, the legislature – have achieved their purpose as soon as the law is signed and gazetted. It is then the responsibility of a different arm of the state to determine what those laws mean and what their effect is.

The function of interpreting laws and saying whether any act or decision is in accordance with the law has, for better or for worse, in the context of the trias politica doctrine, always resided with the courts. And once the courts have made their determinations, it remains the function of another arm of the state, the executive, to give effect to the determinations emanating from the courts.

When an allegation is made, therefore, that the President, who is the head of the executive arm of the state, has made a decision that is not in accordance with the applicable law, it must always sound strange to invoke the trias politica doctrine in an effort to prevent the courts from making a pronouncement on the allegation! The President can make all the arguments he wants, and the Constitutional Court can, if it chooses, agree with him (as suggested via the reference to Justice Kate O'Reagan‘s dictum on judicial deference).

The responsibility imposed on us by history is to point out as lucidly as we can that if we remain faithful to the doctrine of the separation of powers as it was handed to us by previous generations, the result should be different from the one sought by the President!

Mbeki cautions, so the reports indicate, that a close scrutiny of his reasons for dismissing Masetlha might be a threat to our national security. Here I think that one must be as judicious as possible.

There must be a very careful balance of the competing interests. But that balance is possible, in the end, only if we are willing to debate the matter.

I certainly do not think that we should privilege the pronouncements of the President and defer to them, as it were, like they were gospel.

We have to argue that there was a time when Mbeki and Masetlha were almost like tongue and saliva. Surely we must recall how Chief Mangosuthu Buthelezi, when he was minister of home affairs, complained time without number that Masetlha was a law unto himself, as was his director-general.

We can recall, in fairness, the little support he drew from Mbeki.

When Mbeki appointed Masetlha as our spy boss, he had full confidence in him. He conveyed that, with Billy Masetlha as our No 1 spy, we could go to bed and sleep, fully knowing that our national security was taken care of.

Now he turns around and tells us that it would be a threat to our national security to have his reasons examined for dismissing the person we thought all along was, in conjunction with others, the guarantor of that very security.

It seems to me that examining his reasons for dismissing Masetlha might every bit be in the interests of our national security. We need to remind the President, as gently as we can, that our national security lies first and foremost in his hands.

Therefore he bears the responsibility to choose the people to whom he delegates that responsibility very carefully. When things appear to have gone wrong in his delegation, he appears to me to owe us an explanation either directly or through the courts of the land.

It will simply not do for the President to request us to accept that our security demands our ignorance in deference to him. That can only make us more suspicious.