Tired of commissions of inquiry? Demand an attentive Cabinet

Are we bothered when organs of the state fail to execute their mandates as prescribed by law?

A colleague, Bongi Msiza, emphasised the importance of loyalty to the republic by its citizens when she reminded me: “Unlike other people who may decide to move to their country of second choice in the event our hard achieved, human sacrificed country crumbles, millions of South African citizens do not have dual citizenship.”

This means that, as citizens, we should be loyal to our country, and be bothered when the constitutional obligations are not fulfilled as prescribed in section 2 of the Constitution, as well as when laws are not properly applied to serve the people.

Organs of the state – government departments, public entities, constitutional bodies and state-owned enterprises – have constitutional and legislative imperatives to fulfil.

These must be performed diligently and without delay.

Who should ensure that these obligations are performed diligently and without delay?

Who should be concerned when these obligations are delayed or carried out in a negligent or neglectful manner?

Given their respective spheres, the state organs report annually to the National Assembly, which plays its oversight role after the fact – that is, at the end of the year – unless a particular issue is brought to or comes to its attention during the year.

The president exercises executive authority, together with ministers, by implementing national legislation unless otherwise provided for by the Constitution. Cabinet members are responsible for powers and functions assigned to them by the president; are collectively and individually accountable for the exercise of such powers and performance of their functions; must act in accordance with the Constitution; and must report on matters under their control.

The striking question is whether Cabinet members exercise their powers and perform their functions diligently.

If they do, what necessitated the establishment of so many commissions of inquiry on allegations of abuse of power, disregard for the law and human rights?

Performance of constitutional obligations is commonly regulated through national legislation.

What does the administrative role of a minister entail? This question should be read in tandem with the obligation to respect the independence of institutions whose legislation a minister administers.

Does the independence of those institutions mean that they are autonomous and that a minister does not have a say in how those institutions perform their functions or use their powers and resources?

The Constitution provides that the minister responsible for the administration of justice must exercise final responsibility over the prosecuting authority.

What, then, does independence mean?

It means that these institutions must act impartially and make decisions without fear, favour or prejudice, and without being improperly influenced.

Such decisions, however, must adhere to the provisions and purview of the applicable legislation.

It is axiomatic that the implementation of legislation hinges on availability of resources.

Recalling that a minister must, when tabling a bill, specify the resources needed for the implementation of the passed legislation, he/she has the right and duty to ascertain if the legislation imperatives he/she administers are fully carried out, and whether the resources allocated are used for that purpose and not beyond.

Recalling further that departments transfer funds to institutions whose legislation they administer and, in turn, receive quarterly reports, they should be able to see the progress made by these institutions and discover whether the resources are used for the right legislative purpose.

If the resources are used for matters not prescribed in legislation or that are beyond the purview, or if a supposed profit-making institution fails to achieve its objectives and needs a bailout, the minister must surely intervene to put the institution back on track.

A minister must check whether the organogram is aligned to the legislative functions of an organisation.

If things go wrong and the people do not get rational answers for the wrongs committed, the question that should be asked is whether a Cabinet member was absent, attentive or just not bothered.

Cabinet members must claim their rights/duties and administer legislation for which they are designated, and they must collectively and individually account for their actions and/or omissions.

The commissions of inquiry would not have been necessary had the Cabinet been attentive and bothered.

• Sedupane is an advocate and constitutional and human rights law specialist