Are Presidential prerogatives subject to review by courts?

SHARE   |   Monday, 15 May 2017   |   By Adam Phetlhe
Are Presidential prerogatives subject to review by courts?

Constitutions of countries anchored on constitutional democracies give various powers and authorities to Presidents in the executions of the functions of their offices. In so doing, these Constitutions assume that whatever the levels of such powers and authorities vested in these Presidents, such would be exercised wholly in the exclusive interests of their countries. But is this the case and if not, who should ensure that these powers and authorities are properly exercised for purposes envisaged by these Constitutions? The starting point is to define a prerogative which is a ‘Discretionary power given to someone by virtue of the fact that he/she holds a particular office’. This definition suggests therefore that the holder of such particular office may take particular decisions without consulting anybody. These decisions may in some instances be influenced by ill motive towards those they are taken against or towards public good or more precisely, in the interests of the society. In the course of exercising Presidential prerogatives, bad decisions are bound to emerge given the nature of discretion. It is in the context of bad decisions emanating from Presidential prerogatives that this conversation is premised. There will always be those who argue that prerogative decisions remain just that – that is, nobody should ever dare to question them citing Separation of Powers as their defence. The argument is always that when courts accept to review them, they are essentially ignoring the principle of Separation of Powers and by extension unfairly encroaching on the executive territory. In the same vein, there are those who argue that because Presidential prerogatives are sometimes abused for preferred outcomes borne out of say ill will, some oversight in the form of courts are the last line of defence in the public good. I will argue that in this day and age every decision, executive or administrative, should be subjected to some stern tests to test their validity and rationality in the spirit of accountability, transparency and good corporate governance. Anything short of these tests negates constitutional democracy and the Rule of Law. 

In a true functioning democratic dispensation, the legislature provides oversight functions on the executive and in the context of this conversation therefore, the President. This is precisely because the legislature elects the President to the position and consequently, he/she becomes subordinate to it. But in all most all cases, once such President has taken Oath of Office, they do not have the audacity to take the legislature as the supervising authority. The abuse of the Presidential prerogative sets in and if you like, all hell breaks loose. It is here where decisions taken and masqueraded in the name of Presidential prerogative emerge and are questioned. Steven Hayward says in The Unsolvable Problem of Executive Power that “In the scheme of the Founders, the abuse of executive prerogative was meant to be checked by the separation of powers, and congressional oversight is both necessary and proper”. Let us look at this example. In South Africa, the official opposition in Parliament which is the Democratic Alliance has lodged a case with the High Court to require President Zuma to give reasons why he dismissed former Finance Minister Pravin Gordan. Ordinarily, Zuma has a constitutional right and authority to appoint and dismiss members of cabinet. In the recent past and in this particular instance, the dismissals of Finance Ministers have resulted in economic ramifications in the form of the Rand falling and rating agencies downgrading South Africa. When this happened, it meant that job creation is slowed down with unemployment levels rising up because the economy stagnates. The results of Zuma’s exercise of his prerogative are not in the best interests of public good. On the basis of the exercise of a lawful constitutional power and authority vested in Zuma, it is clear that it has not been exercised in the interests of citizens. The point here is that since Zuma had not acted in the public good, shouldn’t the judiciary whose mandate is to ensure that the Constitution is complied with by all those who exercise State power including the President intervene? It goes without saying!

Presidential authority is delegated to members of his cabinet for the smooth running of the country. In this country, an executive decision was taken to close BCL and Tati Nickel mines last October. While the President did not prominently feature in this episode, it cannot be denied that this decision could have been taken without his express endorsement. It is common knowledge that the consequence of this decision has left a lot of Batswana poorer than they were in October last year. The question here again is not that the President has abused his powers but that they were not exercised in the interests of public good. The President was recently found by Justice Tafa to have unlawfully and unconstitutionally employed some judges of the Court of Appeal. While it may be argued that strictly speaking, this was not an act of prerogative function because the Judicial Services Commission (JSC) may have been involved, it is apparent that the ultimate appointing authority in this instance was the President who by extension enjoys the power of prerogative. It must be pointed out that it could be argued correctly or incorrectly that there is or could be a difference between executive function and presidential prerogative. That being the case, it may very well be argued that the President enjoys both at the same time and probably using them interchangeably to suit a particular agenda whatever it may be. At the end of the day, the end result is that national interests and nothing else should be the uppermost. If it is agreed on one hand that the Constitution is the supreme law of the land whose purpose is to serve the interests of all those who live within its borders, it must be agreed on the other hand that any act or action which does not serve this purpose must be subjected to some scrutiny and oversight. Like I have stated above that the legislature is the supervisor of Presidents, it has become more pronounced that legislatures act as buffer zones to shield Presidents from being accountable for their actions and conducts. When this becomes the case, citizens should surely look elsewhere for redress and the courts should provide such place to seek redress. We cannot hide behind separation of powers to justify wrongful application of Presidential prerogative even when it is evident that such is not in the best interests of the country. 



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