Parliament’s impeachment committee is gaining steam. This week, the chairperson of the Section 89 inquiry, Makashule Gana, MP, confirmed they would oppose President Cyril Ramaphosa’s bid to stop its work in the tracks. This is a welcome signal of budding legislative independence after decades of subordination to the executive branch of government.
Conceptualised by the 18th-century French philosopher Montesquieu, the principle of the separation of powers seeks to prevent the abuse of power by dividing government into distinct arms according to function. In modern democracies, like South Africa, the government is divided into the legislature, executive and judiciary. One makes laws, the other administers them, and the third enforces them.
The basis for the separation of powers rests on the assumption that power must be distributed if its excesses are to be avoided. “Power will intoxicate the best hearts, as wine the strongest heads,” Charles Colton cautioned in the penultimate century. “No man is wise enough, nor good enough to be trusted with unlimited power.” The behaviour of historical, even contemporary, leaders backs him up.
As with any, the principle receives its fair share of criticism. The potential to cause gridlock during moments of crisis is one of its most significant limitations. A hard separation of powers would have tied Ramaphosa’s hands during the Covid-19 pandemic, possibly even preventing the lockdown that became the new normal in 2020. Moreover, the extent of power unelected judges ought to be accorded remains debatable. However, these and other concerns need to be stacked and evaluated against the advantages of power being split according to function.
Despite its shortcomings, the separation of powers remains an ideal worth pursuing. It promises to ensure an accountable, quality government of the people. The lawmaker’s job is to represent his constituency and craft laws that respond to the issues of the day. The president and his cabinet must give effect to these laws. The judge must adjudicate. By discharging their responsibilities, they’re together able to exercise effective oversight.
Difficult negotiations delivered a constitutional democracy in 1996. Leaving behind the dark days of apartheid, when parliament and the president enjoyed more power than they deserved, the country embraced a forward-looking system in which no branch of government is above the other.
Over the years, the judiciary has demonstrated a healthy degree of independence. For example, in the 2002, the Constitutional Court forced a stubborn Thabo Mbeki administration to make HIV drugs available. However, the line between the legislature and executive has been blurry at the best of times and absent at the worst. During Jacob Zuma’s tenure, ANC parliamentarians sheepishly towed the party line, shielding his administration from scrutiny whenever necessary. Similarly, in 2022, they (ab)used their majority to bury the report on Ramaphosa’s Phala Phala matter. It was an independent Constitutional Court that exhumed the damning report and sent it back to parliament, setting into motion the wheels of Gana’s impeachment inquiry.
Within his rights, Ramaphosa has approached the court asking it to set aside the report and halt the work of the impeachment committee. The Western Cape High Court will hear the case over the first week of September. Gana was correct to resist pressure not to oppose this. It is important, for the sake of strengthening the independence of the legislature, that Thoko Didiza, an ANC deployee serving as the Speaker of the National Assembly, follows suit.
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Image: Rise Mzansi leader Makashule Gana. Credit Phando P Jikelo/Parliament of RSA
