LUCKY MATHEBULA | Mapanyapanya was unlawful. It cannot be argued into lawfulness

The era of lawfulness and politics in South Africa has commenced. The Madlanga Commission is undeniably focused more on scrutinising prerogative and arbitrary government actions, which are decisions made by those in power without proper regard for the rule of law, than on what is publicly displayed.

Executive authority overreach is under investigation. The inquiry has thus far emphasised the extent, importance and legality of the power of ministers or executive authorities to issue directives.

The validity of the politics behind public policy can no longer override the lawful obligations of organs of state, human or otherwise, appointed or elected. The government’s role as the institution bound to adhere to the rule of law — delivering services lawfully — has entered a new and critical phase. Henceforth, politicians must know and respect the constitutional order’s limits on their vocation.

Whether elected or appointed, organs of state, institutions, or functionaries are characterised by the public power or legislated functions they wield, exercise or perform. Such powers or functions are invalid if they are not defined in or by law.

From a public financial management perspective, any decision to spend from the state revenue account without supporting legislation is unlawful. In the Auditor-General’s parlance, it is irregular and fruitless.

While the constitution provides for the executive authority of the province to be vested in the premier, it does not abrogate the responsibility for sovereign state affairs to any sub-national executive authority. Policing, a critical component of national security and a sovereign state affair, is a national government function that the South African state regulates through national legislation.

Within a cooperative government framework, policing operates at both provincial and municipal levels, which the national commissioner oversees and manages. The constitution states that provincial policing falls under the responsibility of the provincial commissioners. The provincial executive authority framework relates to policing through annual reporting and other regulated administrative provisions, which do not include the creation of a policing entity or similar.

Apart from the civilian aspects of policing, which are managed through a secretariat delegated to the subnational executive level, the premiers bear a political responsibility towards policing. Since policing is a sovereign state matter and cannot be delegated to any subnational jurisdiction, any decision regarding policing will essentially be unlawful unless it is based on the authority from which the policing power derives.

The executive authority of the premier does not include sovereign state functions, such as policing or national security. The provincial premiers possess fragmented executive authority and do not hold full or autonomous executive powers, except for distributive or redistributive functions explicitly outlined in the constitution’s schedules.

Premiers are, at best, nodes within the intergovernmental relations system and custodians of any significant provincial or regional rigidities that require decentralised provincial executive authority.

Premier Panyaza Lesufi’s decision to establish a provincial policing unit, Mapanyapanya, for which he has already incurred expenditures on a scale that the Gauteng provincial government had not previously undertaken, was, by any definition, a prerogative and arbitrary act. It was unlawful, irregular and fruitless in expenditure terms.

This decision and its consequences underscore the importance of legality in political actions and the potential to undermine the normative character and, by extension, the obligations of state organs as outlined in the constitution.

With diminished voter support and relying on borrowed political and social capital, also known as a coalition, the premier’s legitimacy, which should always be grounded in legality, was compromised. The politics behind the premier’s decision might be a convenient excuse for the apparent unlawfulness. The harsh truth is that politics should never allow unlawfulness to become its currency under any circumstances.

Naturally, though regrettably, those involved in politics, operating within a toxic environment of competition and confirmation bias, will, unfortunately, place the premier in a position where the priority is to ensure his political party is not perceived as wrong. Just because something is politically correct doesn’t mean it is lawful.

Lawfulness is the uniform, or jersey, that all public officials and state organs must wear at all times when they act as such. We cannot arbitrarily remove the jersey to return to a place where politics and prerogative decisions become the primary focus around which we all revolve, at the expense of the normative constitutional order we have embraced and are carefully constructing.

Normative governance is hardly normative if you have convinced yourself that the rules of normative governance do not apply to you. The narrative of not apologising for this gross dereliction of constitutional duty does not bode well for the megaphoned renewal programme.

The constitutional values and provisions that define South Africa serve as the foundation for the country’s normative leadership. They guide us through all the incidental controversies, changes and challenges stemming from political events.

Lawfulness is the uniform, or jersey, that all public officials and state organs must wear at all times when they act as such. We cannot arbitrarily remove the jersey to return to a place where politics and prerogative decisions become the primary focus around which we all revolve, at the expense of the normative constitutional order we have embraced and are carefully constructing.

How the issue of unlawfulness, which characterised the establishment of Mapanyapanya is handled will test how the political control environment manifests in the emerging phase of lawfulness. In this period, adherence to the rule of law is becoming more prevalent.

Showing political grace to premier Lesufi might encourage a belief in our own value and worthiness as a society, that our new voices and choices are part of the normal system, regardless of the outcome.