We have recently had debates in both private print and electronic media as well as social media on the president’s decision to authorize the 4 per cent public service salary increment by the next financial year. This decision was debated in the context of what it means given that the Bargaining Council was still on the matter with both parties declaring a deadlock and therefore an independent arbitration. This week I want to reflect on a few issues covering what are executive orders, why and when do presidents use executive orders and general reflections on what the practice of implementing executive orders may require and raise within accepted democratic practices of countries like ours.
Firstly, what is an executive order? In old and modern constitutional democracies, presidents often are constitutional given the powers and authority to issue ‘presidential directives that requires or authorizes some action within the executive branch” of government. These presidential directives can have a number of intentions, such as establishing new policy that often is not part of the planned and approved policy initiatives that have been sanctioned through the known formal structures of governmental procedures, requirements and processes that are guided by known rules, guidelines and regulations guiding policy initiation and development. This type of presidential directives are seen as potential solutions to gaps that may occur during the course of general plan implementation when problems and challenges emerge that warrant immediate attention, outside the formalized government blueprints.
Another intention could be the re-arrangement of organs or agencies of the executive branch to realign them to any new challenges that may be affecting the efficiency of the public service in general. This includes reorganization of ministries through separating functions and creating new ministries, as well as removing some department/units from one ministry to the other. In some cases it may even include abolishing ministries whose relevance is no longer visible or have become redundant on account of new refocusing and major shifts in general policy direction of a government. This is again important and relevant when the need for such action is realised in the middle of approved plans and budgets and the need may warrant immediate action that may be compromised by the wait for the formal processes to be unleashed to deal with the matter. Let’s not that the above does not in any way refer to emergence situations necessarily as history may attest to this on matters that were addressed through executive orders in this country and elsewhere.
Presidential directives can also be used to change or alter existing administrative and regulatory processes of government such as the one that is changing the fee for passport processing for children under the age of sixteen as announced following complaints at a kgotla meeting recently. They can also be used to affect or re interpret how existing legislation has been understood and implemented and lastly they can also be used to take any action permitted within the boundaries of constitutional provisions or statutory authority. The question then becomes why do presidents utilize presidential directives, especially in modern democracies where issues of consensus and broad based consultations are primary for any decision making on matters of policy?
There are a number of reasons which conventionally explains the use of executive orders by presidents, one of which is that where in the discretion of the presidency, the executive feels constrained by the separation of powers and associated weaknesses in the practice of same, the president would normally utilize the issuing of executive orders as a part solution. This would suggest that president chooses to rely on their formal powers as provided by the constitution to make what in their judgement may be an important issue or a policy decision. Presidents can also use executive powers to unilaterally make key and far reaching decisions or implement significant policies.. It must be noted that in the exercise of these presidential directives, when to use or utilize them may actually vary with substantive political developments which makes presidential directives politically driven and partisan pursuits in certain circumstances. The practical input of the usage of these orders for any of the above reasons, should be understood from the perspective that in our type of democracies, presidential directives are legally inherent and presidents do use their own executive authority to make important policy decisions without input or interference from either the legislature or judiciary as conventionally expected in a functional separation of powers environment.
The discussion above suggests that presidential directives are issued legally and they are part of our democracies, but we need to raise questions to ascertain and ensure that they are not used to derail democratic practices. In democracies like ours, the expectation is that the same constitution that provides for these executive orders will provide for legislative checks that will examine and guarantee that these orders adhere to appropriate limits of the president’s independent powers. It is of utmost importance to ensure that these orders do not raise constitutional issues, especially those issues that may suggest that orders contradict constitutional provisions or general principles embodied in the laws of the country. This is important because executive orders by their nature do not as a rule present public objectives or even formal policy making requirements and therefore are often limited in their scope and possible choices.
Executive orders as outputs of unilateral decision making, offers very limited and temporary alternatives for policy initiatives and therefore the public forfeits its right to deliberate policy choices that is associated with the more consensus building policy making processes. It is even more necessary to check the use of executive orders because although they have legal force when they are based on the president’s constitutional or statutory authority, history does show that often presidents can have an expansive view of their own powers when it suits them, and invariably use executive orders to expand the boundaries of their authority. The practical expectation is therefore that when presidents exercise their constitutional powers to issue these orders, they are mindful of the need to respect accepted norms and values of the practice of policy analysis and making, as guided by dictates of modern democratic practices.
