A (short) lesson for our Minister of Justice on the Rule of Law

Our new Minister of Justice, Jeff Radebe, is a lawyer and has a Masters degree in International Law from that august institution, the University of Karl Marx in Leipzig, but he might need some assistance to bring him up to speed with the structure and principles underlying our own Constitution. And I am not sure cribbing from a student textbook is going to do the trick.

In an article published in the Sunday Times last month Radebe presented an extraordinary argument in defense of the decision by acting National Director of Public Prosecutions (NDPP), Mokotedi Mpshe to drop charges against President Jacob Zuma. As pointed out by James Grant in an article on Politicsweb, Radebe seemed to have borrowed extensively from a student textbook, but have fundamentally misunderstood (or deliberately misconstrued) what the Constitution actually requires.

In the article Radebe seems to argue that the National Prosecuting Authority is part of the judiciary and that criticism of the NPA or a legal challenge to its decision fails to respect the independence of the judiciary.

The constitution enjoins us to respect the judiciary, and that includes the acting national director of public prosecution’s decision to withdraw the case against Zuma. Therefore, to challenge the rulings of the judiciary, including those of the NPA, outside the due avenues of law is to invariably undermine its independence and hegemony in society. In essence, it is to invite anarchy…. It is incumbent upon all of us, in fighting our political or other battles, not to put into disarray our constitutional democracy, lest we invite chaos and anarchy merely for the expediency of narrow political gain.

Now that the acting director has acted in terms of the constitution and the powers vested in him as a judicial officer, opposition parties want to interfere with the operations of the law…. The opposition should not be selective in discussing the role of the director because, in terms of our law, he, in exercising his discretion as dictated by our laws, assumes a judiciary function. And the judicial function of the director has the same constitutional protection as that of a court of law or a judge. It is therefore crucial that the director be afforded the same protection against political influence.

This is a spectacularly uninformed, if self-serving, argument. In the light of the (probably illegal) firing of Vusi Pikoli this line of reasoning also seems hypocritical, to say the least.

The NPA is not part of the judiciary and does not exercise a judicial function. Neither does the NPA enjoy the same independence as our courts. It is true that section 179(4) requires that national legislation must ensure that the NPA exercises its functions “without fear, favour or prejudice”. But section 179(6) states that the Minister of Justice – that is Radebe – “must exercise final responsibility over the prosecuting authority”.

The Constitution and the NPA Act clarifies what, at first blush, might seem like a contradiction. This is done, first by allowing the Minister to decide on a prosecution policy in consultation with the NDPP. This prosecution policy binds the NPA and “must be observed in the prosecution process”.  The NPA Act also requires the NDPP to provide the Minister with all the information he may require or request to exercise his responsibility but prohibits him from interfering in individual decisions of the NDPP.

Moreover, the Minister of Justice unfortunately seems not to understand that even the decisions of the judiciary are not beyond criticism – as long as the criticism focuses on the reasons given for a decision and not on the race, sex or political affiliations of the judge.  A decision by a lower court can also be appealed to a higher court. In a constitutional democracy, even if the NPA was part of the judiciary (which it clearly is not), its decisions can and must be scrutinised and criticised. This will not lead to chaos  or “put our democracy in disarray”. On the contrary, such criticism is an absolute necessity if we are to establish and strengthen the legitimacy of the courts (and also of the NPA).

But the most disturbing aspect of this article is that the Minister seems to have (let us be kind) a limited appreciation of the principle of the Rule of Law. He seems to suggest that once the NDPP made the decision to drop charges against Zuma and purported to have done so in terms of the Constitution and the law, such a decision cannot be reviewed by the courts.

No Minister, its time to go back to school. Where an organ of state like the NPA makes a decision to drop charges, the Rule of Law requires it to adhere to the Constitution and the law.  The Constitution states that the NDPP can only drop charges in accordance with the prosecuting policy. If charges were not dropped in accordance with this policy, the NPA would have acted unlawfully as it would not have been legally empowered to do what it purported to have done.

The Constitutional Court has made it abundantly clear that where an organ of state fails to adhere to the Constitution or the law there is a breach of the Rule of Law and that decision would be invalid and could be set aside by a court. This is exactly what those who criticise the decision of Mpshe are arguing.While a court cannot order the NPA to make a specific decision regarding the dropping of charges, it can (and must do so if requested) declare invalid an unlawful decision by the NPA.

This is a fundamental tenet of the Rule of Law. I guess those learned colleagues at the University of Karl Marx did not teach our Minister the finer points of the Rule of Law or if they did, our Minister was bunking that class. As he is now the Minister of Justice it is rather important that Radebe brushes up on his understanding and knowledge of the Rule of Law and that he stops making self-serving arguments aimed at shutting up critics and pre-empting decisions by our courts.

Let us hope Radebe’s schoolboy cribbing and out of context borrowing from a student textbook will stop now that he has been appointed Minister of Justice and that he will respect the Rule of Law and the power of our courts to enforce it.

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