By: Clyde Ramalaine
In Japanese the Emperor is called Tennō which if translated into English literally speaks to “heavenly sovereign”. Matamela Cyril Ramaphosa ominously absent in leadership since his advent in December 2017 on March 24, 2020 became a hero for some who engage in snapshot analysis for what makes for successful leadership. He in an endearing sense is referred to by some as Mr. Constitution, from a role in a historical moment as assigned by the Mandela-led ANC to co-lead the drafting of the 1996 accepted constitution of SA. It’s a title he gladly embraces and one he at times resorts for a means to invoke a sense of privileged superiority over those who may find him in contravention of the noble goals of such.
Ramaphosa shares in many titles, these include among others the one who led the biggest labour strike in 1986, Cyril who from outside the ANC against tradition became the Secretary-General of the ANC, the one who in clandestine sense took over the role as chief-negotiator while Mbeki and Zuma both were outside the country thought it opportune to replace both the aforementioned in their respective designations. Matamela the one who was so upset that he could not be Mandela’s deputy president of SA in 1994 that he in childish sense refused to attend the inauguration. Ramaphosa the one who was banished to billionaire-wealth-status made possible by BEE-pollution in 2012 had a second lease of political life when he in drafted in sense re-emerged as deputy to Jacob Zuma, in February 2018 finally realised his 1978 articulated personal dream which he shared in jest with then boss Hurwitz in words of… “when I am one day president…I will appoint you minister of white affairs…’’
I will postulate in this unusual season of novel ‘virus’ Ramaphosa is hard at work to become an Emperor something none of his predecessors ever attempted. Ramaphosa has effectively been running SA since March 24, 2020 at the hand of disaster act legislation and is threatening becoming the COVID-19 sponsored Lockdown Emperor that is accountable to none. Emperors speak alone, they make the rules, they give instructions and they rule without ever being asked to explain less to account. South Africa since March 24, 2020 was introduced to what I will call the phenomenon of the Lockdown Emperor. We knew it because since that day whenever the democratically elected president speaks it is to instruct. All his official addresses excluded any engaging or moments of reflection in which clarity may be sought as a constitutional democracy dictates.
All presidential leadership since the advent of democracy at some point in their sojourn find themselves having to respond to the constitution less in romanticism of poetic speeches but to respond to the constitution when it purportedly showed them off-side in challenging their respective decisions, leadership and practices as a threat to a bequeathed custodianship.
As we enter week six of the novel COVID-19 and its subsequent Lockdown with its slew of regulations and rules that often protest contradictions and belated levels of implementation two advocates Nazeer Cassim and Erin Richards members of the law society took it upon themselves to ask for clarity as to the oft mentioned National Corona Command Council (NCCC) that is recognized as the official structure for governance in this unusual epoch.
From what we gather Cassim and Richards as jurists embarked on a search for clarity which emanates from an identified tangible lack of information on the matter. The lack of information it can be assumed is further underscored by the fact that it appears communication on the NCCC in identity sense adopts varied definitions or means for explanation. among others “the centre of information sharing coordinating and implementing measures to contain the virus leading the country’s response to the pandemic.”
Both president and cabinet in regard to the provenance of a National Command Council as a constitutional structure for governance are firm in manifold utterances designating it an authority yet vacillating in constitutional premise for the existence of the structure.
Cassim and Richards, therefore, draws the president and our attention to the fact that when the president addressed South Africa on March 24,2020, he informed SA the decision to take SA into a lockdown was taken by the NCCC. To confirm this on April 3, 2020 Minister if Police Bheki Cele informed SA that the NCCC “revised” the regulations. Later, April 9,2020 the president informed SA that the NCCC concluded that the national lockdown be extended. We also know that on April 23, 2020 we South Africans discovered that the NCCC also had powers to determine levels of alert for the presence of the novel COVID-19 virus. Since it has these powers it already determined that the prevailing level 5 be replaced with the current Level 4 SA is currently categorized in.
Cassim and Richards asked the President to answer to two simple and straightforward questions these being:
1. The legislative or other basis for the establishment of the NCCC, and
2. The extent of the powers being exercised.
The advocates informed the president that if clarity was not provided by 1pm on May 4, 2020 or at such an extended deadline as the president may require, they “may consider approaching their ethical bodies for directives concerning potential litigation’.
Senior Counsel Vuyani Ngalwana who wrote two opinion pieces as published in the Sunday Independent argues that the president never answered any of the two pertinent issues or questions raised by the adovocates. He states the president, “ instead, speaking through the Cabinet secretary, the President dressed down the advocates lecturing them on ‘trite principles’ of our Constitutional democracy’, excoriating them for “insistence on putting in jeopardy all measures taken to save South African lives’ and threatening them saying their inquiry ‘ is not commensurate with their positions as officers of the court’.
Ngalwana points out that the president’s letter of response to the Advocates among others conflates the function of the NCCC with that of bodies like Cabinet’s inter-ministerial committees. Je asserts the president response deals with a separation of powers question between the executive and the legislature. These are issued never spotlighted by the advocates.
With anticipated litigation mounting on the subject matter the question that raises itself involuntarily is why the president and his legal team could not answer the simple questions? More so why the president could not at the onset take SA in confidence to inform us as to the constitutional frames he relied upon to give effect to his establishment of the NCCC? Even more troublesome is the now challenging and instructive attitude of the president as his letter communicates. I have argued the behaviour of governance that becomes evident under the COVID-19 Lockdown confirms more an emperor than a democratically elected constitutional president.
Lest we forget as SC Ngalwana reminds us that the Constitutional Court in the EFF v National Assembly, was well as the case of Democratic Alliance v Speaker of the National Assembly (2016) ZACC 11, 2016 (3) SA 580 (CC), 2016 (5) BCLR 618 (CC) at para 20 as “ a constitutional being by design, a national pathfinder, the quintessential commander -in-chief of state affairs and the personification of this nations constitutional project.
What is even more interesting to notice is the absence of many of the usual vocal Foundations and NGO’s. CASAC rightly questioned parliament’s inaction during lockdown reminding Parliament of its absconded oversight role. Yet, there is a pervasive silence on the subject of ridiculous and nonsensical regulations from these Foundations who appears to be all in concert to afford Ramaphosa a status of a Japanese emperor in this season.
On this score the likes of FUL, Ahmed Kathrada Foundation, Section 23, Helen Suzman, Mandela Foundation usually the self-appointed custodians of the constitution are audibly silent to ask similar questions as Cassim and Richards in simplicity asked the President to give clarity and information on. Another group constitutes the factional clergy of SA, whom you will soon hear backing the emperor when they silent to keep Ramaphosa accountable. Their subservient silence and compliance say more of their vested interest than them being responsible actors in a society.
Gradually the silence of the so called constitution defenders are chiselling into shape the image of a emperor until ‘Emperor’ Ramaphosa can be this demeaning to respond in the letter to the advocates in threatening sense. What is clear is regardless what may happen the courage of conviction of these two jurists May never be appointed or promoted under this presidency who already without due legal scrutiny advanced a conclusive opinion that their behavior was not ” is not commensurate with their positions as officers of the court.”
The unfortunate reality is that the ANC bequeathed its factional identity to the SA society which has come to define the core in socio, political, religious, academic and economic spheres. In this season an COVID-19 Lockdown Emperor identity is allowed to raise itself aided by the convenient silence of some who purport to be defenders of a constitution.
It is no wonder Minister of Police Bheki Cele confuses COVID -19 Lockdown as a normal means for governance when he boasts about the reduction in crime statistics as a result of the lockdown. May we remind the President, his cabinet and all others who had sworn an allegiance to him as SA’s last hope we not an imperial nation but a constitutional democracy. Access to information is not a privilege and accountability in respect to political office bearers is not optional neither the opposite of commitment to a SA.
The president’s response was to ignore these legitimate questions instead he opt to threaten the Advocates with a form of blackmail with the following words, “insistence on putting in jeopardy all measures taken to save South Africans lives.”
Late this past week we heard of strange calls for prayer because there are apparent threats of a coup and death against Ramaphosa. I simply do not buy the hypocrisy of some religious leaders that conveniently were silent when former president Zuma had more than four attempts on his life. Where were these prophets then? I also do not fall for the idea of victimhood that renders Ramaphosa an endangered species that must be protected as the last hope of an SA. This is nothing but a political tactic employed by those who seek to blindly defend the Emperor”, they are on a campaign to make him a victim when they refuse him be held accountable.
As anticipated the temporal heroism of COVID-19 lockdown leadership is falling apart since many more begin to question the scientific rationale for any lockdown and the accompanying slew of absurd regulations that defines the practical living spaces. President Ramaphosa must answer the simple though pertinent questions as raised by Cassim and Richards on the NCCC structure and its constitutionality and quit assuming he runs an empire where his word is automatically final.