Who advises the President and why are so many balls being dropped?

Photo courtesy of GovernmentZA via Flickr

Earlier this month members of parliament wanted to know who advises the President.

More about that later…

I have often been asked the same question. Of course, there are a few formal advisors on the payroll, but I often wonder what the hell they are doing.

Over the last few months, several incidents have had me throwing my hands in the air in exasperation. 

The first one is related to the SABC board and is what gave rise to the MPs questions. In December of last year, the Portfolio Committee on Communications and Technologies presented the President with a list of names for the SABC Board. It was an urgent matter, since the mandate of the previous board had expired, and important decisions could not be taken. 

As is required by law, the committee presented 12 names to the President, plus an additional three in case any of the other candidates were unable to take up the position. 

The weeks ticked by…

Explanations for the delay were asked.  Vincent Magwenya from the Presidency explained: "Before the president puts his signature to a bill or appointment it is important that he fully satisfies himself with the process that was undertaken and with the substantive issues, the constitutionality of the exercise, but more importantly the legality of the exercise." 

Fair enough. 

However, it took almost two months after he received the list to send a letter to the speaker of parliament, in which the legality of  the additional three names (or the reserve list) was questioned.  Apparently the President had some concerns since one person wasn’t available. In response, parliament’s legal advisor - in a scathing legal opinion - said that the President was acting unlawfully and had to go ahead with the appointments, since he was free to dip into the reserve list. 

Finally, more than 4 months after the list was approved by the Portfolio Committee, having left the SABC without a legal board for 185 days, the President made the appointments as proposed by the Portfolio Committee. 

I can’t understand why the legal advisors in the Presidency, couldn’t figure this out themselves?

Why did they allow the President to be embarrassed by a legal opinion from parliament and for the SABC to be paralysed for so long, when a simple read of the relevant act would have sufficed?

Of course, this is not the only bad legal advice the president has been given recently.

After the special panel appointed by parliament and led by Chief Justice Ngcobo, recommended that the president had some more answering to do in regard to the Phala Phala allegations, the Presidency approached the Constitutional Court directly to challenge the Ngcobo report.  

The President might be right that the report was deeply flawed, but a first-year law student would have been able to tell him that he would almost certainly not succeed in a direct approach to the Constitutional Court. Although the Court was approached shortly after the report was released, there was nothing so exceptional that it warranted a direct intervention by the Apex Court. In any case, by the time the judges ruled that the matter be sent down first to lower courts, parliament had already voted against the report. 

So, I ask again, how can what we presume are some of the best legal brains in the business have failed to foresee that this approach would be rejected by the Concourt?

Also, why didn’t they withdraw the case after the parliamentary vote? 

Even though the ruling of the Concourt was not on the substance of the report, but rather on process, it was another needless embarrassment for the president, and made him look weak - as he has been throughout the Phala Phala drama. 

His handling of the Phala Phala accusations should be a lesson to all aspirant politicians about how NOT to handle a crisis.

If the President had immediately clarified the issue – as he would later do to the Public Protector - he could have saved himself and the country an enormous amount of pain. Instead he was clearly advised to keep quiet – which now means that Phala Phala will remain part of his legacy – something that could have been avoided. 

Then, there is the frequent delay in signing legislation. An example of this was the legislation dealing with Party Political funding. After months of deliberations at committee level, the bill was finally passed by the National Assembly on 6 November 2019. After that, it stayed onthe proverbial presidential desk for more than 14 months. Unsurprisingly, the President was criticised for the delay and there were endless conspiracy theories as to why it took so long. 

This week, three names were withdrawn from the list of intended recipients for National Orders. In this instance even the ANC Veterans League objected to some of the names. How embarrassing to have to back-track after having formally announced the names!  Of course, the actual selection is done by the National Advisory Council, but I can’t help wondering why no one in the Presidency did a quick check before the list was made public. Surely, it was blatantly obvious that some of the names were problematic?

Those working with the President are tasked to protect him and his office by giving good advice and heading off mistakes before they become public. It is clear that more often than not the ball is being dropped by those close to Ramaphosa. He is loyal to those who work with and for him – which is admirable – but if he wants to leave a positive legacy he urgently needs to strengthen his team and listen to better advice.