Cape Town - Constitutional law expert Pierre de Vos has said the National Assembly (NA) would today elect the ethically compromised former minister of defence, Nosiviwe Mapisa-Nqakula, as the new Speaker.
Writing in his blog Constitutionally Speaking, De Vos said although MPs would formally cast their votes to elect a new Speaker, they would have had no role in actually choosing the Speaker.
“Instead, the Speaker was chosen by the top six leaders of the ANC, who were elected to these positions at the party’s national conference by just over 6 000 party delegates … The election of the new Speaker by the NA will therefore be nothing more than the confirmation of a decision taken at the governing party’s headquarters,” he wrote in his blog published last week.
Mapisa-Nqakula was announced as a nominee last week after the ANC’s parliamentary caucus was informed of the decision of the top six leaders by ANC chairperson Gwede Mantashe, following Mapisa-Nqakula’s axing from the Cabinet.
Mapisa-Nqakula’s nomination has attracted criticism, with the EFF saying they would not participate in the election.
They accused President Cyril Ramaphosa of undermining the separation of powers.
Mabuza Attorneys, writing a letter to acting Speaker Lechesa Tsenoli, said ANC MPs failed to exercise the dictates of their conscience or oath of office when they accepted the instruction from Mantashe.
The letter also said Ramaphosa had improperly and incorrectly conflated his role as president of the country with that of president of the ANC.
They argued that Mapisa-Nqakula was not fit and proper to occupy the important position of Speaker, and her nomination to that position was self-evidently irrational.
De Vos said whether or not it was appropriate for party leaders to select the new Speaker, it did raise the broader problem of the conflation of the governing party and the state.
“The problem is not only that the decision shows contempt for Parliament by imposing a failed (and fired) Cabinet minister on the NA as its new Speaker, reinforcing the perception that the governing party does not fully recognise the separation of powers between the legislature and the executive.”
He said of more concern was that Mapisa-Nqakula was facing allegations that she received cash and gifts totalling R5 million from a South African National Defence Force contractor while she was minister of defence, and that she was called to appear before the Joint Standing Committee on Defence at the end of May to respond to allegations of corruption.
“Mapisa-Nqakula’s ’election’ as Speaker will now make it close to impossible to continue with this process, thus thwarting the ability of MPs to hold her accountable for her actions as a member of the executive, as they are constitutionally required to do. While committees have broad powers to summon individuals (whether they are serving ministers or not), it is hard to imagine that her new position will not be used formally or informally to protect her from parliamentary scrutiny.”
Paul Hoffman, of Accountability Now, said the constitutionally mandated oversight role of Parliament was in danger of being stymied if a recent and controversial member of the executive, over which the oversight must be exercised, was made Speaker.
“Such a move would be an abomination, especially at a time when the executive has failed the nation so spectacularly that parliamentary inquiries into the snafus of July 2021 are pending,” he wrote in an opinion piece this week.
Hoffman said Mapisa-Nqakula was unmanageably conflicted when it came to leading Parliament’s oversight of the executive, having been a member of it very recently.
“Her ability to be impartial in setting up the committee activity needed to exercise oversight properly is completely compromised. Her binding code of ethics as a member of the executive does not end the minute she is dropped from Cabinet,” he said.
Hoffman also said the purpose of electing a new Speaker was to appoint a fit and proper person of known and impeccable integrity who was capable of impartially fulfilling the duties and functions of leadership of the NA.
“Objectively speaking, Nosiviwe Mapisa-Nqakula is not such a person,” he said.
Hoffman said if the processes of democratic centralism were treated as mere advice or a “recommendation” from Luthuli House to the ANC caucus in Parliament, it was their constitutional duty to reject the recommendation and instead support a candidate who measured up to the standards of the law.