Our constitution – the worst of all the worlds

Separation of powers is the cornerstone of any list of checks and balances for a shared governance regime (“A shared governance regime must contain strong checks and balances!” SN 4 April 2012). This is because in an ethnically divided society such as ours every effort should be deliberately made to allow all ethnic groups a visible and meaningful say in the decision-making process and to dispel and check any ethnic majoritarian tendencies.

Even experts such as Arend Lijphart, who support parliamentary-type systems as best suited for divided societies agree that they are not very supportive of a separation of powers. Thus Lijphart wrote: “In theory, it (a parliamentary system) makes the executive subservient to the legislature, but in practice it means that, on every important vote, legislators must cast their votes not only on the merits of the particular issue but also on keeping the cabinet in office: the fact that most legislators do not want to upset the cabinet too frequently gives the cabinet very strong leverage over the process of legislation. In presidential systems, the legislature can deal with bills on their merits without the fear of causing a cabinet crisis – and hence also without being “blackmailed” by the executive into accepting its proposals. Consequently, in a hypothetical ceteris paribus situation, separation of power entails greater legislative independence and more balanced executive-legislative relationship.” (Lijphart, Arend – 2008- “Thinking About Democracy” Routledge).

In an effort to reduce the importance of ethnicity in the political process, in last week’s column I made several recommendations. Firstly, there is the not totally unjustified claim that, in the context of racial voting, our constitution encourages racial politics by providing that the party that gains the highest multiple of votes at a general election wins the presidency.  To mitigate this outcome I proposed that future presidents must be elected by a majority of above 50% of the votes cast. This does not totally eliminate the possibility of one ethnic group providing that majority, but particularly after the outcome of the last elections, it will encourage future presidents to cast their nets beyond racial groupings both distributively and politically.

Secondly, I tried to further disentangle the presidency from the parliament, giving the latter scope to grow to become more independent. I argued that the president should not be organically tied to the parliament; that s/he should not be able to prorogue it, that ministers should not be members of parliament and that chairpersons of important parliamentary standing committees should have remuneration and status not dissimilar from those of the executive. In this context, national elections should be for a fixed term and held at specified times.

Although not of necessity, it follows that if the president cannot prorogue parliament, parliament should not be able remove him by a vote of no-confidence. However, this in no way prevents parliament from carrying a no-confidence motion against the president or anyone else in the executive. Maybe less so in our ethnic context, but I suspect that even here if used judiciously, such a vote could have a serious public relations impact and thus important political consequences. Although ministers will not be members of parliament, they should only be appointed with parliamentary approval after a requisite hearing an+d they must be required to make such reports to parliament as it believes necessary.

My choice of presidency to attempt to make parliament more independent appears to be supported in the literature. Thus Lijphart stated: “In parliamentary systems, reasonably disciplined and cohesive parties are required because they have to support cabinets in office; in presidential systems, this requirement does not apply, and parties can afford to be much laxer with regard to internal party unity. This means that, ceteris paribus, a party system with, say, two or three parties in a presidential democracy would have to be considered less majoritarian than a parliamentary party system with the same number of parties” (Ibid).

Of course, rarely does everything remain the same thus notwithstanding the above, Lijphart supported parliamentary type systems for divided societies because, according to him, presidential systems are essentially majoritarian with an impulse towards two party rather than multiparty systems, which are more suited to multiethnic societies. This majoritarianism is more pronounced when presidential elections are decided by a plurality rather than a majority vote.  Proportional representation cannot be used because presidential elections are usually about one person and concentrate executive power not simply in one party but in one individual and cabinets are responsible to that one person and are less collegiate.

If the above is anything to go by, our mixed parliamentary/presidential system contains the worst of all the worlds.  Apart from the natural tendency of presidencies towards the concentration of power, we elect the president on a plurality and then through his/her party’s ethnic majority give her/him control of the parliament which s/he can prorogue in her/his own good judgment. Indeed, our constitution proclaims that ministers are advisors to the president. With this kind of executive dominance even the judiciary must find it extremely difficult to maintain its independence!

Little wonder then that we have had recurring dictatorial aberrations and now the near universal demand for constitutional reform.

To avoid the majoritarian effect of electing the president separately on the largest plurality, the president should be elected by more than 50% of the members of parliament who have themselves been elected through a system of proportional representation that contains direct constituency representation.

While I have provided parliament with greater possibilities of independence and leverage to scrutinize the executive and suggested that the president be elected by a majority proportional vote, these suggestions have been facilitated by normal elements found, for the most part, in some modern presidential systems such as the that of the United States of America. Next week I will consider my specific shared governance proposals.

However, constructing a shared governance regime, like constitutional reform in general should be an holistic exercise with an eye on future developments and possibilities. Thus, while nothing I have said so far prevents the recurrence of a majoritarian government, it would be a huge mistake to make light of the need to create a context that fosters a strong separation of powers if the proposed shared governance regime is to be transitional and we are to gradually grow to become a “normal” democratic society.

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