Constitutional Hill

Jackie Selebi

Parliament neither fit nor proper

Feb 12th, 2009
by Pierre De Vos.
93 comments

The ANC majority of a joint ad hoc committee of Parliament has now taken a political decision to rubber-stamp the decision of President Kgalema Motlanthe to fire Vusi Pikoli, the National Director of Public Prosecutions (NDPP), on the basis that Pikoli was not suitably sensitive to national security concerns and was thus not a “fit and proper” person to perform his duties as NDPP as required by the NPA Act.

This is a sham decision and fortunately for Pikoli and his legal team the report by the ad hoc committee does not do a good job of hiding this.

Section 12(6) of the NPA Act makes clear that the NDPP can only be removed for one of four objectively determinable reasons, one being that he is no longer a fit and proper person to hold the office concerned. A decision by the President to fire Pikoli can therefore only be legally valid if it  has been determined – looking at all the facts – that Pikoli is indeed no longer a fit and proper person. This is not a decision that can be taken on the basis of political considerations. In order to be legally valid, a clear determination has to be made on the facts and these facts must be shown to demonstrate that the NDPP is no longer a fit and proper person.

This would require the President and then Parliament (1) to define what constitutes a fit and proper person and (2) then to show that the NDPP has demonstrated through his actions that he no longer meets the criteria for a fit and proper person. A clear causal link must be established between the criteria set out in (1) and the facts that show the incumbent no longer meets those criteria. Otherwise the decision would be ultra vires and thus invalid and could be overturned by a court of law.

Unfortunately, the report utterly fails to define the criteria for a fit and proper person and thus falls at the first hurdle. It is thus my contention that the decision of the ANC majority is illegal and could very well be overturned. Apart from the breathtaking double standard of the ANC majority, who often talks about the right to be presumed innocent until proven guilty but failed to even pretend to consider such niceties in this case, the report fails to do what the Act requires it to do.

Of course the term “fit and proper” is not defined in the act and there may well be some difference of opinion about what the requirements for a “fit and proper” NDPP might be. It was therefore the task of the ad hoc committee to define what it understood under this term, taking into account the provisions of the Constitution and the NPA Act, before rushing to find that the man who wants to prosecute their boss does not meet the criteria set out in this definition.

So let me assist those honorable members of Parliament and explain how they should have proceeded if they had wanted to act in a legally defensible manner.

The NPA Act must be construed in the light of the Constitution and the words and phrases in it must – if it is reasonable possible to do so – be interpreted to comply with the letter and the spirit of the Constitution. We do know that section 179(4) of the Constitution states that “[n]ational legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. We also know that in the First certification judgment the Constitutional Court found that this phrase guaranteed the independence of the NPA and its boss. We also know that section 9 of the NPA Act states that an NDPP must be a ‘fit and proper person, with due regard to his or her experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned”.

Read together, this seems to suggest that in order to be a fit and proper person the NDPP must first be capable and at all times willing to act independently, in other words without fear, favour or prejudice. The NDPP must not buckle under political pressure and should not make decisions regarding the investigation and prosecution of individuals on other than legal considerations and the prosecutions policy. Some would argue that Bulelani Ngcuka was not a fit and proper person because he is alleged to have made a decision not to prosecute Zuma based on exactly such political considerations. No credible allegations of a similar kind have been made against Mr Pikoli, so he clearly meets this criterion.

Second, the NDPP must show the necessary conscientiousness and integrity when doing his job. He must not be lazy, spectacularly careless or act in a dishonest or criminal manner. Given the constitutional guarantee of prosecutorial independence, this cannot mean that the NDPP must always be perfectly correct or must make the correct or wise decision every single time. To interpret the section otherwise would be to give a blank cheque to the President and Parliament to interfere in individual decisions made by the NDPP and even to fire him if they disagreed with the correctness or wisdom of a particular decision he made. Such an interpretation would not be in conformity with the constitutional guarantee of independence of the NDPP.

A general and persistent failure to follow prosecutions policy agreed upon with the Minister of Justice would however meet the threshold and would allow the President to fire the NDPP. It must be remembered that the Minister must formulate such a prosecution policy in concurrence with the NDPP and that this provides the Minister with the power to fulfill his or her constitutional duty to “exercise final responsibility” over the NPA.

At present the prosecutions policy does not require the NDPP to take into account national security when making decisions to investigate or prosecute individuals. The policy might well have to be amended to include such a provision, provided that the term “national security” is defined with sufficient precision and safeguards are included in the policy to ensure that such a clause does not give the Minister or the President unconstitutionally broad powers to interfere with the work of the NDPP. Fact is, at present there is no such policy and even if it could be shown that Mr Pikoli was not sensitive enough to national security issues, legally the prosecuting policy did not require him to do so.

In any event, even if the prosecutions policy did mention national security, on the facts before us it is clear that Mr Pikoli’s actions regarding the arrest of Police Commissioner Jackie Selebi do not warrant a finding that he was insensitive to national security. This is because the President has a constitutional duty to uphold the Constitution and also to oversee national security issues. Yet the President did not mention “national security” concerns when he suspended Mr Pikoli and nor did the government argue that Mr Pikoli had not taken into account national security concerns when he requested a warrant to be issued for Mr Selebi’s arrest.

If the President, with all the facts at his disposal and privy to national intelligence briefings, did not think this was a serious enough issue to warrant Mr Pikoli’s suspension, then it clearly was not a real issue that demonstrated Mr. Pikoli lacked the conscientiousness and integrity required by the Constitution and the NPA Act. Unless, of course, the President and the government lied when it suspended Mr Pikoli and  unless the government then lied about the reasons for Mr Pikoli’s suspension before the Ginwala Commission of Enquiry and provided bogus reasons for his suspension.

Surely the President must be given the benefit of the doubt on this issue – given the fact that he is privy to all the dark secrets of the country and given also the fact that we must presume that the President would not deceive the nation or the Ginwala Commission of Enquiry.

Given the above, it seems clear to me that the decision by the ANC majority on the joint ad hoc committee of Parliament is a political and not a legal decision. I contend that the decision to fire Pikoli is therefore illegal and that Parliament will be in breach of the law and the Constitution if it confirms the decision of the ANC majority on the committee. I sure as hell hope Mr Pikoli and his lawyers take this case to the Constitutional Court and that, in due course, it will be shown that Parliament demonstrated that it was neither fit nor proper when it did this political hatched job on Mr Pikoli in order to try and protect their President.

Questions for Chikane, Mbandla, Gumbi, Simelane, Mpshe and Mbeki

Jan 22nd, 2009
by Pierre De Vos.
88 comments

Sometimes the truth seems so blindingly obvious that one is tempted to believe that even our politicians would not be able to twist the facts to justify the indefensible – only to be reminded that politicians lie for a living and that the ordinary voter is often too lazy or stupid to care.

But let us consider this question, nevertheless: who should we believe?

Should we believe Vusi Pikoli, the man who even Frene Ginwala – old friend of Thabo Mbeki and disciplined member of the ANC – found to be a man of the highest integrity?

Or should we believe Brigitte Mbandla, the often tired and emotional ex-Minister of Justice, her Director General, Mr Simelane, who was caught lying before the Ginwala Commission, or Thabo Mbeki, a man who has a rather bizarre relationship to facts and the truth, or his Director General, Frank Chikane, who first made ringing statements about the deal struck with Adriaan Vlok before he went to the Ginwala Commission to denounce that very same deal when his boss decided a case had to be built against Pikoli?

Let us consider the evidence and probe a bit deeper into this obvious question. On the one side we have Vusi Pikoli, who told the Parliamentary Committee set up to rubber stamp the decision of President Kgalema Motlanthe to fire the National Director of Public Prosecutions (NDPP), that if the Scorpions had never investigated the murder of mining magnate Brett Kebble he would not now be suspended and required to defend himself before a parliamentary committee.

“If it had not been for the matter of Kebble I would not have this problem I am having today,” he said, adding that the decision to charge Selebi was the direct reason for his suspension. He also described as unlawful and unconstitutional an instruction from then justice minister Brigitte Mabandla that he halt the investigation of Selebi. He said both Mbeki and Mabandla had asked him to resign but he had refused as this would have allowed executive interference to triumph over the independence of the National Prosecuting Authority. “Because I refused to obey an unlawful instruction I was suspended.”

On the other hand we have the government, this time represented by the honourable Reverend Chikane who claimed yesterday that it was wrong to say that Mbeki had abused his power.

“I was there. The president did nothing to stop Pikoli from arresting Selebi.” Chikane said Mbeki had merely acted to manage any potential security fallout when he asked the head of the National Prosecuting Authority (NPA) to wait two weeks before arresting Selebi on corruption and fraud charges. “There was a great risk of something extraordinary happening to destabilise the country and it was the duty of the president to ensure the country was not destabilised.

On the face of it, the claim by Chikane cannot be squared with the claim by Pikoli. Unless, of course, Chikane had learnt a trick or two from his former boss and was twisting the truth in such a way that he could sooth his conscience while at the same time misleading the nation.

I will assume that Chikane is correct when he says that Mbeki did not order Pikoli to stop the arrest of Jackie Selebi. He did not phone his friend Selebi and asked him to come and arrest Pikoli, “finish and klaar”, because he was threatening national secuirity by having the audacity to want to arrest a friend of the President. But this does not mean that the President did not act in ways to indeed stop the arrest of Selebi.

When this case comes to court I would like to see Chikane, Mbeki, Mbandla, Gumbi and Simelane called to the stand and asked the following questions:

  • What is the relationship between Mbeki and Selebi? How long do they know each other? How much money did Brett Kebble give to the ANC? Did he give any money to Mbeki or any of his pet projects?
  • After it became clear that Pikoli was going to arrest Selebi, what did the President say to Chikane, Mbandla, Gumbi, Simelane or Mpshe about the case? Did he ask any of them (or anyone else) to take steps to ensure that Pikoli did not arrest Selebi before the Polokwane conference? If he did not, was it because he was momentarily dumbstruck or are those testifying just lying to protect their boss?
  • Why did Simelane write the letter illegally instructing Pikoli not to arrest Selebi and why did Mbandla sign it? Was there any link between this letter and anything the President or his staff told Simelane or Mbandla? If not, why has Simelane and Mbandla not been arrested by the police for this illegal interference with the NPA? Why were they not immediately fired by the President for issuing this illegal order?
  • If Mbeki did not do anything to stop the arrest of Pikoli, why was Pikoli suspended by the President on a public holiday and only a day before he was going to execute the warrant for Selebi’s arrest? 
  • If Mbeki, as his underlings and Ginwala have claimed, was concerned about the national security implications of Selebi’s arrest, and if Mbeki had not tried to stop that arrest, why on earth did he not try and stop the arrest? Surely, if there was really a national security concern and if he thought he had a duty to act to protect the country, then he would have made sure that Selebi would not be arrested – otherwise he would be in dereliction of his duties as President? Please explain this contradiction.
  • After Pikoli’s suspension and the appointment of Mokotedi Mpshe as NDPP, what was said by Mbeki, the Minister or anyone else to Mpshe about the arrest of Selebi? Who gave the instruction to Mpshe to cancell the arrest warrant? Surely it must have been on instructions from the President that this instruction was given – otherwise, how does one explain the involvement of Gumbi and Simelane in the drafting of the letter to request the cancellation of the arrest warrants? Or did these officials act without instructions from the President and if so, why have they not been fired?
  • Why did the Presidency give conflicting reasons for the suspension of Pikoli? Was it incompetence or was it because they discovered that the original reason for the suspension could not be justified, so they had to cook up some new reasons ex post facto? Either way, why were they not all fired for this dishonesty/incompetence? Was it because they were acting on instructions from Mbeki?
  • Even after he was fired as President, Mbeki maintained that he had not seen any evidence of wrongdoing by Selebi, despite the fact that Pikoli had provided the President with all the information he requested – the same information that prompted an indepndent panel of experts to conclude that a strong case exists against Selebi. So was Mbeki lying when he said repeatedly that he had not seen evidence to implicate Selebi? If he was not lying, what was he smoking at the time?

A skilfull cross-examiner will have a field day with all these witnesses and I will take a bet of R1000 with anyone that under cross-examination it would become clear that Mbeki and all his underlings are lying through their teeth about this matter. Pikoli was suspended because he wanted to arrest Selebi – finish and klaar.

Why Mbeki and his underlings are spreading these “deliberate falsehoods” are beyond me. If there was good reason to suspend and fire Pikoli to protect the national security, then surely Mbeki and his underlings should all be admitting that Mbeki suspended Pikoli to ensure that Selebi was not arrested because then Mbeki would just be doing his job.

The fact that they are all denying this blindingly obvious fact can only mean one thing: they are not telling us the truth. But parliament cannot afford to face this fact so Pikoli is toast.

The NPA, the Minister and the headless chickens

Jan 16th, 2009
by Pierre De Vos.
51 comments

I see the ANC in Parliament is suggesting that the NPA Act might have to be looked at to “clarify” the relationship between the executive (specifically the Minister of Justice) and the NPA, given the fact that the SCA differed from Judge Nicholson about the exact nature of this relationship (and Frene Ginwala’s quasi-judicial report again gave an entirely different – not surprisingly far more executive minded – interpretation of this relationship).

The argument is that there seems to be two “seemingly conflicting” provisions in section 179 of the Constitution. One says that national legislation must ensure the NPA exercises its functions “without fear, favour or prejudice”. The other provision says that the justice minister must exercise “final responsibility” over the NPA. 

However, if one reads s 179 together with section 33 of the NPA Act, and if one reads these two provisions in the light of the Constitutional Court Certification judgment, which said section 179 guaranteed the independence of the NPA, there is really no conflict – unless one is Frene Ginwala and one needs to protect the Dear Leader. As the SCA has now confirmed, Nicholson and Ginwala both had it wrong.

The SCA judgment did what many of us have advocated, namely it reconciled the so called “conflict” between the two constitutional provisions in line with the approach in Namibia, saying “although the minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a prosecution, the minister is entitled to be kept informed”. Thus the appeal court seemed to limit “final responsibility” to information giving (when so requested by the Minister).

Given our system of precedent, the SCA interpretation is now authoritative, which means as a matter of law Ginwala’s report got it spectacularly wrong. We all know why this bright woman gave such a bizarre interpretation of the Constitution and the law – she had a political master to please and was clearly NOT independent and impartial when she drafted her report.

The SCA judgment therefore has some serious consequences for the President and for the National Assembly, who must decide whether to endorse the President’s recommendation to fire Vusi Pikoli. This is because in the light of the SCA judgment, the reasons given by President Kgalema Motlanthe for firing the head of the NPA is now confirmed to have been legally untenable. And as the courts and not the President or his legal advisors are tasked by the Constitution to interpret that text, Motlanthe does not have a leg to stand on.

Ginwala said the provision affording the justice minister “final responsibility” over the NPA meant more than “purely information passing” as it must be read in the light of the co-operative government provisions of cvhapter 3 of the Constitution. There should be “discussions” between the minister and prosecutions chief, and the minister could “bring to the consideration of the (national director of public prosecutions) such matters as government may find to be relevant in respect of such cases.”

She also suggested that the NPA head had a duty to take into account the claims made by the Minister or the President regarding “national security” before he made decisions to arrest or prosecute anyone – regardless of whether any solid proof had been provided by the President about how the so called national security would be affected. So according to Ginwala, Pikoli had a duty to obey the President when he claimed national security was at stake in the arrest of Jackie Selebi and he therefore had a duty NOT to arrest Selebi until the President said it was ok to do so.

This kind of logic followed by Ginwala and Motlanthe is an utter abomination and – if followed – would lead to a complete destruction of the independence of the NPA. I will give an example to show why.

Imagine the NPA head decided to arrest a friend and political ally of the President for murder. In order to protect his friend the President now tells the NPA boss not to arrest his friend because if he did, it would affect “national security”. He provides no proof of this, but instead tells the head of the NPA that if he arrested the President’s friend, the President would become so cross that he would have to surf the Internet again.

“You know what happened the last time I did that,” he would say, “I discovered HIV maybe does not cause Aids and 300 000 people died as a result and I became the laughingstock of the world, so you better stop this nonsense right now or our national security will be severely compromised!”

This interpretation is not compatible with a constitutional guarantee of prosecutorial independence as confirmed by the Constitutional Court and by the SCA. The Ginwala interpretation – on which Motlanthe relied to get rid of the man who wants to continue the prosecution of Jacob Zuma - is therefore a legal nonsense. This has now been confirmed by the SCA, so Ginwala really has egg all over her face while the President, well, he must be looking like an overcooked omlette.

That is why President Kgalema Motlanthe’s recommendation to fire Pikoli – based on this bizarre and legally untenable interpretation by Ginwala - is probably illegal and why an endorsement of this recommendation by the National Assembly is on  very shaky legal ground.

As the SCA has now implicitly confirmed, section 33 makes clear that to enable the Minister to exercise his or her final responsibility over the NPA, the Minister may request information from the head of the NPA and this information can then be used to ensure that the Minister exercises final responsibility over the NPA by keeping him or her informed and allowing him or her to report on the work of the NPA without interfering with is constitutionally guaranteed independence of said NPA. 

Sadly the ANC members of Parliament are probably not going to follow the law and the Constitution on this one. They are probably rather going to obey the legally untenable recommendation of the President. Hopefully Pikoli and his lawyers will then challenge this in court, where the law and not the whims of a party hack like Ginwala will hopefully be followed.

Then Pikoli can get his job back and the “political solution” for Jacob Zuma’s very serious legal troubles will disappear. At which point Gwede Mantashe will probably call the judges counter revolutionaries again and Julius Malema will string a paragraph or two together, blaming “dark forces”, a “conspiracy”, the CIA, and Father Christmas for this terrible persecution of Mr. Umshini wam, and warming that the Youth League will not rest before every last judge in South Africa is sent to an ANC Youth League piss up.

At which point all sane people in South Africa will die laughing.

UPDATE: A few hours after writing this, I read on New24 that – yes! – my friend Julius said the following:

Malema warned that “dark forces” were at work against Zuma and implied that the five judges of the SCA had been influenced in their judgment in favour of the NPA. “Judges can be spoken to by any other person, knowing the tendency of these ones who are against us. They [the 'dark forces'] travel at night. They’ve got the potential to do anything… Courts must be above political games. They must not interfere.”

He added, however, that the ANCYL had “confidence in the courts but it doesn’t mean you can’t criticise”. Asked who the “dark forces” behind the so-called political conspiracy against Zuma were, Malema replied: “They have left the ANC. Those are the forces who are working on us. Those that have left this organisation.

“They were doing it from within. They failed. Then they left. They’re doing it form outside now because they think they can mobilise our people against this glorious movement and they are working with the imperialists, the former colonisers, to try and destabilise this country. It’s an agenda to destabilise liberation movements in Africa.”

Sadly no mention of Father Christmas……. And the Youth League piss up was also not mentioned. Ag, I just thought I had become all seeing and all knowing and for a moment I felt like Thabo Mbeki must feel every day. . . .

Why Ginwala and Motlanthe are dead wrong

Dec 9th, 2008
by Pierre De Vos.
158 comments

After re-reading Frene Ginwala’s report, it is quite clear to me that in her haste to protect the then Minister of Justice and the then President, she wrote a report riddled with inconsistencies and contradictions.  The President then decided to fire Pikoli and in doing so, may have misconstrued his powers in terms of the NPA Act.  He might well have acted ultra vires in doing so and Pikoli’s lawyers will have at least an even chance of winning a case if they wished to challenge this decision in court.

First, let us turn to dear Frene Ginwala – presumably like the then Minister and President, a disciplined member of the ANC – and her “Report”. This is of course not an independent Report, but a Report prepared by an ANC cadre. Remember, it was reported that Ms Ginwala travelled with Brigitte Mabandla on a flight from Cape Town to Johannesburg on 20 September 2007, two days after the Minister sent the illegal instruction to Vusi Pikoli to stop the arrest of Jackie Selebi. When asked about this in Parliament, the then Minister said she could not remember whether she had traveled with Ginwala, and she declined to answer a question about whether she had met with Ginwala in the days before or after this event.

She also declined to subject herself to cross examination before the Enquiry, which suggests that she knew her testimony would not stand up to scrutiny and that she would be pulled to threads under cross examination. Either Mabandla has a memory like a sieve (which is possible as it is rumoured that she is often tired and emotional), or she was lying through her teeth.

In any case, even Ginwala could not help but find at various stages of the Report that Vusi Pikoli’s had “impressed me as a person of unimpeachable integrity”; “impressed me as a man of unquestionable integrity, with passion to execute his constitutional responsibilities without fear, favour or prejudice”, and “impressed me as a person of unimpeachable integrity and credibility”. Yet she found at the same time that had facts about Pikoli’s refusal to accede to the President’s request not to arrest Selebi “been presented as the reason for the suspension, when the conduct would have held a real risk of undermining national security, I would not have hesitated to find the reason to be legitimate.”

Section 12(6) of the NPA Act makes clear that the NDPP can only be removed on stipulated grounds, including that he was no longer a “fit and proper person”. As Ginwala concedes, when deciding whether the NDPP is “fit and proper”, section 9 of that same Act stipulates that due regard should be given to his or her “experience, conscientiousness and integrity”.

But strangely, while she found that the NDPP was conscientious and had integrity,  she also seemed to find that he was “not fit and proper” to hold office because he refused to obsequiously adhere to the President’s dubious request not to arrest Selebi for at least two weeks for “national security” reasons. (In the event, Selebi was arrested later  -  by mere accident (?!) only after the Polokwane conference – and national security did not seem to suffer at all.) There was also no evidence given to the Enquiry that Pikoli’s actions actually threatened national security in any way. So let me get this straight: although possessing the qualities that makes a person fit and proper, he was not fit and proper because he refused to obey the President’s “request” not to arrest Selebi because maybe, just maybe, national security might have been threatened. Go figure.

Ginwala also found that Pikoli was not suspended because the government wanted to stop the prosecution of Selebi. Yet she found that the Minister had signed a letter instructing Pikoli not to arrest Selebi and that this instruction was illegal and may have constituted a criminal offense. She also found that the President requested Pikoli not to immediately arrest Selebi and then suspended Pikoli when he refused to give the President more than a week before arresting the Police Commissioner. The suspension occurred a day before the arrest of Selebi would have been effected by Pikoli.

The government then provided several bogus reasons for the suspension and proposed dismissal – all rejected by Ginwala as invalid reason for Pikoli’s dismissal – and studiously avoided mentioning Pikoli’s decision to arrest Selebi as a possible reason for his suspension and possible dismissal.  Yet Ginwala herself then found that because Pikoli had the cheek to assert his independence when requested not to proceed with the arrest of Selebi, he had failed in his duties and might therefore not be a fit and proper person.

She even suggested that Selebi did not have a right to present the President with the fait accompli, namely that he would arrest Selebi and that he was required first to inform the Minister and the President before getting the warrant for Selebi’s arrest and then had a duty to obey any request by the President not to arrest the Police Commissioner until such time as the President had taken the steps he might have claimed he deemed necessary to save us all from the national security catastrophe that would ensue. This does not seem to square with her earlier finding that the executive could not interfere with operational decisions of the NDPP.

These contradictions can only be wiggled out of if one makes the semantic argument – as Ginwala might well do – that government did not want to stop the (eventual) prosecution of Selebi – but merely the arrest of Selebi before the Polokwane conference or for some other vague reason regarding national security or the need to inform the tooth fairy. Ginwala is rather silent on this obvious point.

The Report also suggests that, when the President asked Mr Pikoli to suspend the execution of the warrants for two weeks, Pikoli should blindly have agreed to do so without question. But the President did not motivate his request for two weeks in any way and when Pikoli suggested one week instead, the President did not engage with him on the adequacy of his suggestion. As Pikoli’s lawyers point out:

[The President] did not say that a week would not be enough. The impression he created was that he would have preferred two weeks but that a week would do. There is no reason to believe that the President was overly concerned about the matter. …  When the Minister asked Mr Pikoli to resign on Sunday afternoon 23 September 2007, she did not suggest that it had anything to do with his failure to allow the President more time to create an enabling environment. She would have done so if it was a real concern at the time.

When the President suspended Mr Pikoli, he did not say or suggest in their meeting or in his letter of suspension that it had anything to do with Mr Pikoli’s failure to accommodate the need for an enabling environment. He would have done so if it was a real complaint at the time.

Government never raised this complaint in their public statements after Mr Pikoli’s suspension, in their founding statement in the enquiry, in their supporting affidavits or even in their affidavits in reply. The DG in the Presidency filed two affidavits but neither of them suggested any unhappiness about Mr Pikoli’s reluctance to delay the execution of the warrants for more than a week.

In other words, Ginwala “invented” this reason to make a finding adverse to Pikoli without this ever having been raised by the Minister, the President or anyone else in their respective offices and without this having been given as a possible reason for his suspension. There is of course a very good reason why these people never mentioned Pikoli’s refusal to stop the arrest of Selebi, namely such an admission would have been tantamount to an admission that Pikoli was suspended because he had refused to stop the arrest of Selebi. Ginwala in effect finds that this would indeed have been a valid reason for the suspending Pikoli, yet she found that this was not at all the reason why the NDPP was suspended. Go figure.

Second turning to President Motlanthe’s announcement: The President stated that “it should be noted that the requisite skills would, necessarily, include professional competence as well as those outlined by the enquiry, in particular, appreciation for and sensitivity to matters of national security” and then found that based on these circumstances Pikoli was not a fit and proper person. Once again, no mention is made of the content of what constitutes a fit and proper person as set out in section 9 of the NPA Act. He fails to deal with the assertion made by Pikoli’s lawyers that:

None of the criticisms of Mr Pikoli come close to impugning his fitness to hold the office of NDPP. They reflect a mere difference of opinion between the enquiry and Mr Pikoli about the way in which he should perform his functions as NDPP. They do not reflect on his fitness for office at all.

But Jacob Zuma and the ANC needed to get rid of Pikoli so that a pliant NDPP can be appointed to ensure the case against Mr Zuma is never brought to court. Mark my words,  unless Pikoli challenges and wins a case against the decision to fire him, the President is going to appoint a party hack to the position of NDPP and this party hack will decide not to pursue the case against Zuma.

NPA independence R.I.P.

National security, the last refuge of scoundrels?

Dec 8th, 2008
by Pierre De Vos.
100 comments

At the heart of the Ginwala Commission of Enquiry Report and the decision by President Kgalema Motlanthe to recommend the removal from office of Vusi Pikoli, the National Director of Public Prosecutions, is a rather troubling interpretation of what is required to safeguard the constitutionally protected independence of the NPA.

The Report correctly points out that the Constitutional Court had held that s 179(4) of the Constitution, providing that national legislation must ensure that the prosecuting authority exercises its functions ‘without fear, favour or prejudice’, amounted to ‘a constitutional guarantee of independence’. It also points out that the Court had further noted that ‘any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts’ and concludes that “[a]ny attempt by the Minister of Justice to  influence prosecutorial discretion in individual cases would therefore be contrary to the Constitution.” But, the Report then states:

Sufficient attention has not been paid to the requirement of democratic accountability of the prosecuting authority. In focusing only on independence from political interference they have erred in conflating freedom from control with freedom from accountability. Further, scant attention has been paid to the nature, content and ambit of the “final responsibility” of the Minister, and even less to the relationship between this responsibility and the prosecutorial independence of the NDPP.

The Report then refers to chapter 3 of the Constitution, which deals with the principle of co-operative government between the national, provincial and local spheres of government and all organs of state within those spheres, and argues that the NDPP has an extraordinary onerous duty to co-operate with the President, the relevant Minister and other organs of state such as the South African Police Services.

If this interpretation is correct, it would place a very heavy burden on the NPA to co-operate with the executive when  deciding to issue warrants for the arrest of high ranking state officials or to prosecute them. In the case of Selebi, the Commission found its own interpretation of the Constitution and the NPA Act required the NPA boss not only to have informed the Minister and the President before requesting that a warrant of arrest be issued for the National Police Commissioner, but also to have acquiesced to a request by the President not to proceed with executing the arrest until such time as the President had taken the steps he deemed necessary for what he deemed to be in the interest of “national security”.

This seems like a controversial and rather novel interpretation of the Act and the Constitution as the  NPA Act does not explicitly require the NDPP to inform the Minister – let alone the President – of any actions to arrest anyone – unless he or she explicitly asks for such information.  It is not clear that the NPA’s constitutional independence, safeguarded in the Constitution, can be squared with this interpretation that in effect gives the President a veto power over decisions to issue arrest warrants against high placed government officials merely because the President cites issues of “national security”.

It is also not clear that chapter 3 of the Constitution applies to an independent body like the NPA as this chapter deals with relations between the three spheres of government. It is my opinion that the heavy reliance placed by the Ginwala Commission on chapter 3 of the Constitution completely misconstrues the nature of chapter 3 as well as the constitutional requirements for an independent NPA. Her interpretation of the NPA’s Constitution acknowledges the independence of the NPA on the one hand, then takes it away with the other.

Moreover, there is a good reason that “national security” is sometimes called the last refuge of scoundrels. It is such a vague concept that it would potentially give the President or the Minister extraordinary power to intervene in the decisions of the NDPP and  might well place the NDPP in the untenable position of always having to worry whether his decision might be construed by the politicians as having national security implications on their say-so.

Given the fact that Ginwala did not find that Pikoli’s actions did indeed hold any  threat for national security, the decision by the President to fire Pikoli seems like  setting a dangerous precedent as a future President will now be able to pressure the NDPP when he or she embarks on a course of action not favoured by the President by making vague assertions of national security being at stake.

It is also worrying that Ginwala expressed concern that Pikoli had not fully appreciated the sensitivities of the “political environment” in which the NPA needs to operate, and his responsibility to manage this environment. An appreciation of the “political environment” does not seem to sit easily with a duty to exercise one’s duties without fear, favour or prejudice.

Ginwala then continues:

Adv Pikoli needs to always recognise the final responsibility of the Minister and should have pro-actively made her aware of all matters of a sensitive nature that the NPA became aware of in the course of its functions, and fully and regularly briefed her on the progress of high profile investigations and prosecutions.

This obligation on the part of the NDPP  is not found in the Constitution or the NPA Act and was invented by Ginwala. It stems from her view that the Minister has to exercise final responsibility over the NPA and that this means more than set out in the Act. If a NDPP could be fired for not informing the Minister of something she or he though was important, the NDPP would be busy all day long writing reports to the Minister. This is not what the Act requires and, I would submit, it could not have been intended to require that as the Act must be read in the context of the Constitution that guarantees the independence of the NPA and Ginwala’s interpretation would make the Act unconstitutional.

But the report does contain rather devastating findings – although these findings are not followed to their logical conclusion. Thus Ginwala analises the letter signed by the then Minister of Justice a few days before Pikoli was suspended and states that:

the letter conveys a meaning that Adv Pikoli was to stop any plan to arrest and prosecute the National Commissioner of Police until the Minister was satisfied that there was sufficient information and evidence to do so. The Minister has since on affidavit said that it was not her intention to stop Adv Pikoli from discharging his duties or performing his functions as the NDPP. Assuming this is correct, the conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.

So, Ginwala in effect found that there was an illegal and criminal order to Pikoli to stop the prosecution of Selebi. This order was drafted by the DG and signed by the Minister. Yet she also finds that there was no reason to believe that the President suspended Pikoli because of the prosecution of Selebi. What I wonder is: who decided that this letter had to be written? Was the President or his advisers involved? Would Ginwala have been forced to come to a different conclusion if the question was posed differently, namely, whether the government wanted to fire Pikoli because he issued an arrest warrant for Selebi? These questions are not answered in the report. Could this be because the answers would not have favoured the man who appointed Ginwala and belonged to the same political party of which they are both disciplined members?

It is clear that the suspension happened shortly after Pikoli informed the Minister and the President that a warrant of arrest had been issued for Selebi. The letter was then written and shortly afterward Pikoli was suspended. It seems to stretch the bounds of credulity to argue – like Ginwala does by implication – that the one had nothing to do with the other. There clearly was a link. The only question is exactly what this link was.

So maybe Mbeki and his Minister did not interfere with the prosecution of Selebi. They (the Minister? the DG? Mbeki?) “just” interfered with the attempt to arrest Pikoli. This is still a criminal offense, but maybe not as serious as the first charge of trying to stop the prosecution altogether….

Should Pikoli be re-instated pronto?

Dec 5th, 2008
by Pierre De Vos.
85 comments

If a news report in today’s Mail & Guardian is correct, Vusi Pikoli should immediately be re-instated as National Director of Public Prosecutions. According to the Mail & Guardian the confidential report of the Ginwala commission clears former president Thabo Mbeki of an abuse of executive power, while at the same time exonerating Pikoli. Apparently the report recommends his reinstatement as national director of public prosecutions.

Apparently the report finds that Mbeki did not interfere in the arrest and prosecution of police National Commissioner Jackie Selebi.

Our investigation shows that former speaker Frene Ginwala and her panel rejected suspended prosecutions boss Vusi Pikoli’s contention that Mbeki colluded with senior government officials to save Selebi’s skin. Instead, the report says justice department boss Menzi Simelane misled former justice minister Brigitte Mabandla and withheld information from her and the inquiry.

It further finds that: Simelane misled Mabandla, although she trusted him; Pikoli was lax in his handling of security clearance issues; and Pikoli gave former Scorpions boss Leonard McCarthy too much freedom.

It is difficult to analyse (or critique) these findings without sight of the full report. But a few preliminary observations are in order.

First, if the report does indeed find Pikoli continues to be a fit and proper person as required by the National Prosecuting Authority Act, we would then be able to conclude in hindsight that there was no reason for the then President to have suspended Pikoli and that the President had made a mistake in doing so.

While section 12 of the NPA Act allows the President to suspend the head of the NPA pending an inquiry into whether he is a fit and proper person, this suspension must be linked to a reasonable belief by the President that an inquiry could find that the NDPP is not fit and proper to hold office. If Pikoli is indeed exonerated by the report, it would constitute a slap in the face of Mbeki (or his legal adviser),  as it would suggest that he was wrong to believe (if he ever did believe) that Pikoli’s actions made him not a fit and proper person to hold office.

Second, if the Ginwala inquiry had failed to obtain evidence that Pikoli was not fit and proper, it would be impossible for President Motlanthe not to reinstate him as NDPP. This is because the NDPP can only be fired on the basis of one of the objective factors set out in section 12 of the NPA Act. If an inquiry has now found none of these objective factors existed, then there was no basis for him to be fired and he would have to be reinstated immediately. Failure to do so might be construed as an attempt to interfere with the independence of the NPA and the NDPP as guaranteed in the Constitution and the NPA Act.

Third, if the Mail & Guardian report is correct, the position of the Director General of the justice department must be in serious jeopardy. If I was the director general I might feel aggrieved about such a finding, given the fact that the then Minister of Justice, the President’s legal adviser (who, we now know, played an important part in persuading – or “assisting” – Mokotedi Mpshe to cancel the warrant for Jackie Selebi’s arrest) and the President himself had not testified before the Commission.

If I was Simelane I might well have felt that I had been made the scape goat for the mess that led to the suspension of Pikoli. I would also wonder what happened on the day before Pikoli was suspended and what was said that day between the then Minister of Justice (apparently exonerated by the report) and Ginwala when they travelled together on an SAA flight to Pretoria.

However, one would have to wait and see how persuasive the actual report is, before making any definitive comments about its credibility and before casting aspersions on Ginwala.  It might well be that her findings are well reasoned and well justified and that it shows convincingly that the director general was the villian in this drama. Who knows. One thing is certain, the sooner the President releases the report the better for all of us.

    Once a denialist…..

    Oct 17th, 2008
    by Pierre De Vos.
    78 comments

    Maybe Thabo Mbeki should get out more. If his answering affidavit in his Constitutional Court application of the Nicholson judgment is anything to go by, all that surfing on the Internet and living in the bubble created by the office of the Presidency was obviously not very good for him. A golden thread running to this answering affidavit is that Mr Mbeki really, really, was not aware of all the conspiracy talk from Mr Zuma and his lawyers or if he was, he thought that it was all just based on misguided reporting by the wicked media.

    For example, in his affidavit, Roger Hulley, Mr Zuma’s lawyer argued that the then President must have been aware of the questions raised by Zuma and his lawyers about the “conspiracy” against Zuma and whether Mbeki and Mr Vusi Pikoli :

    had discussed whether Mr Zuma was going to be prosecuted or not, whether the dismissal of Mr Zuma was fair, whether President Mbeki’s conduct put pressure on Mr Pikoli to prosecute Zuma, (designedly or otherwise) etc. In those proceedings, Mr Zuma thus implored the Prosecution to obtain statements or other clarification from President Mbeki who was described as a cardinal and essential witness in the matter and the criminal prosecution. The Prosecution effectively ignored this.

    In response Mr Mbeki seems to suggest that he did not know about this and in as much as he read media reports in this regard, he thought they were false:

    I respectfully submit that to the extent that certain media reports did come to my attention, I frankly did not believe that the First Respondent would have made the statements that the media were attributing to him, as he was fully aware of my views regarding the National Executive’s constitutional responsibility to the rule of law as expressed, inter alia, in the National Assembly at the joint sitting of Parliament on his release from his responsibilities as Deputy President. In fact, again as a member of the National Executive Committee (NEC) of the African National Congress (ANC), the First Respondent was aware of this….

    Of the media reports that did come to my attention in whatever format, I did not believe that the First Respondent had made the vexatious allegations attributed to him. This is so because of the statements that the First respondent and I made jointly in this regard.

    I suppose once a denialist, always a denialist.

    The affidavit is also interesting for other reasons. First, what shines through this affidavit is that Mr Mbeki had a very different view of the constitutionally protected independence of the National Prosecuting Authority (NPA) than that set out in the Constitution, the NPA Act and by various judgments of the Constitutional Court and the High Courts.

    While Mbeki accepts the “constitutional imperative that the prosecuting authority exercises its functions without fear favour or prejudice”, according to him there was a tension between this and the obligation of the President  to ensure that where a national commissioner is investigated and stands to be arrested, an arrest “is executed in a manner that does not affect or compromise the national security of the Republic”.

    This seems like a red herring to me as it is unclear how issuing an arrest warrant for the National Police Commissioner will affect national security. Where such a warrant is issued and the President is informed (not asked, as Mbeki seems to think is required) the President immediately may take steps to suspend the Police Commissioner and appoint an acting Commissioner. This should take a few minutes, so how national security comes into it is beyond me.

    It is very clear from this affidavit that President Mbeki has failed to comprehend the requirements of prosecutorial independence and to this day believes a President’s constitutional obligations can somehow sometimes trump the need for the NPA to act absolutely without interference from the Presidency.

    Second, the affidavit is interesting for what it does not deny and for the way in which denials are formulated. For example, Mbeki denies that Vusi Pikoli briefed him on the decision to charge Zuma “on my visit to Chile” and then states: “I deny that I travelled to Chile to decide on [Zuma's] political future.” Mbeki does not deny that Pikoli briefed him in South Africa on Zuma’s case and then he denies something completely irrelevant, namely that he travelled to Chile to decide’s Zuma’s future.

    Later on Mbeki denies that “the Government instructed Mr Mpshe on how to deal with certain matters in the prosecution of Mr Selebi” and that “Mr. Mpshe was instructed to undo some of the steps in the prosecution of Mr Selebi”. What Mbeki does not deny (because it would be a lie if he did), is that his office instructed Mr Mpshe on how to deal with the investigation of Mr Selebi, by instructing Mpshe (through legal advisor Mojanku Gumbi) to cancell the search warrants of Selebi’s office and the warrant issued for his arrest.

    This is an artful denial worthy of a Bill Clinton (who once denied something by saying “it depends on what the definition of ‘is’ is”). The denial is ambiguous enough not to constitute a lie, but it leaves a completely wrong impression, namely that the Presidency did not interfere in the Selebi case. These people are obviously masters of parsing words and think they are very clever, but a careful reading of the affidavit leaves this reader with the impression of a man who loves to play with words, but is not necessarily a great lover of the truth.

    Spurious case against Vusi Pikoli?

    May 12th, 2008
    by Pierre De Vos.
    17 comments

    The more I find out about the suspension of Vusi Pikoli, the more it seems as if the case presented to the Ginwala Commission is nothing more than an ex post facto fabrication to cover up the illegal and unconstitutional actions of the Minister and the President. Nothing shows this more clearly than the fact that the President has consistently lied to the nation about Jackie Selebi.

    Shortly after losing the ANC Presidency at Polokwane in December last year, President Thabo Mbeki told reporters that he could not suspend National Police Commissioner Jackie Selebi because he knew nothing of any wrongdoing on the latters part.

    “I have said this before, many times, that if there was anybody who has information that shows that National Commissioner Selebi has done wrong things, I would act on it. Nobody came to me,” Mbeki said.

    Sadly, he was lying through his teeth. This is very clear if one peruses a letter which the National Director of Public Prosecutions, Vusi Pikoli, had sent to President Mbeki on 7 May 2007 – almost eight months previously – to inform the President of serious allegations that incriminated the Police Commissioner in bribery and corruption. The letter also stated that Pikoli intended to seek a search warrant to obtain information germain to the investigation against Selebi.

    This letter – now available on the Internet – sets out in detail the train of events that led the NPA to investigate Selebi including the following rather incriminating facts:

    • When Jackie Slebi became aware that Glen Agliotti’s cell number appeared in the files of investigators into the murder of Brett Kebble, he phone Mr Agliotti in the presence of the investigators to warn him about this;

    • Phone records show many suspecious calls between Jackie Selebi and persons connected to Brett Kebble’s murder before, on the night and after the murder;

    • Glen Agliotti – who was suspected of drug smuggling and murder and has now plea bargained and confessed to the former – kept a diary which contains many references to meetings with one “Jackie”, referring to the Police Commissioner, and that he had phoned the police Commissioner more than 50 times;

    • Sources alleged that Selebi met with the three suspects in the Kebble murder case on several occasions to discuss progress (or lack thereof) with them;

    • Mr Agliotti – fearing for his life after his arrest for the murder of Brett Kebble – had offered to make a statement to the effect that he had had a generally corrupt relationship with Jackie Selebi for which Mr Selebi had received about R1 million;

    • That Mr Selebi was officially under investigation by the Scorpions in terms of section 28(1) of the NPA Act.

    The President therefore knew by May 2007 about the extremely serious allegations against the Police Commissioner yet he claimed several times that no one had brought any information in this regard to him. He then suspended Pikoli four days after a warrant of arrest was issued for Selebi and his Minister is now trying to argue that he was merely acting in the national interest to protect national security.

    But the NPA Act does not allow the President to suspend or fire the NPA boss except for misconduct, incapacity, or if he is not a fit and proper person anymore. The latter is a legal turn of phrase which denotes integrity and character. If Pikoli had obeyed the illegal and unconstitutional instruction by Justice Minister Brigitte Mabandla to stop his arrest of Selebi, he would have acted in a way that would have allowed for his suspension.

    By refusing to do so, he showed exactly that he was indeed a fit and proper person and that he would rather obey the law and the Constitution than the Minsiter and the President.

    When the President says in his letter to Minister Mabandla that he had constitutional duties regarding the National Commissioner of Police, he is merely stating the obvious, namely that he can appoint and also suspend the Police Commissioner. He himnself cannot decide whether the commissioner should be arrested or not. His letter seems to wrongly suggest that because the NPA prosecutes people on behalf of the state “represented by our duly elected government”, this government can interfere in decisions about prosecution – which it decidedly cannot do without facing the option of a 10 year prison sentence.

    Unless dramatic evidence surface to show that Pikoli is involved in nefarious activities of his own or that he refused to provide the Minister with sufficient information about his actions, there is no way that the Ginwala Commission can make a recommendation that he should be fired.

    So far the persons that seems to be candidates to be fired are not Pikoli but Mabandla and the President. I predict that when the history of this sorry saga is written, it will go down as yet another nail in the coffin of any reputation that President Mbeki might have had. First there was Aids, then his vilification of the “ultra left”, then his use of the Safety and Security Minister to nix his political opponents (Phosa, Sexwale etc), and now his protection of a man who seems deeply involved with a drug dealer and murder suspect.

    What did we ever do to deserve such a deceitful and corrupt man as President? Or did the President act in this way because he once again thought he knew better than the professionals what the real story was (like he did on HIV/AIDS). No wonder a Jacob Zuma Presidency – based on collective leadership and acknowledgment of fallibility – looks a better option every day.

    Zuma prosecution a conspiracy after all?

    May 4th, 2008
    by Pierre De Vos.
    7 comments

    Supporters of Mr Jacob Zuma who have long held that the Scorpions and the National Prosecuting Authority (NPA) have been used to “frame” their man, received another boost late last week when the Mail & Guardian reported that Justice Minster, Brigitte Mabandla, had “ordered” Vusi Pikoli, now suspended National Director of the NPA, to stop the criminal investigation into Police Chief, Jackie Selebi.

    According to the report in the newspaper Mabandla had written to Pikoli about the Selebi investigation a few days before Pikoli was suspended:

    “Until I’m satisfied that it’s in the public interest, you will stop,” Brigitte Mabandla wrote, according to a source close to former speaker of Parliament Frene Ginwala’s inquiry into Pikoli’s fitness to hold office. Pikoli refused and wrote back to Mabandla that she might be guilty of obstructing justice. He was suspended by Mbeki four days later.

    If this is true, the Minister was clearly abusing her power and trying to Act outside the four corners of the Act by ordering that which the Constitution and the law does not allow her to order. While the Minister must approve any prosecuting policies of the NPA, she has no power to interfere with decisions by the NPA to investigate or prosecute any individual cases.

    This is because section 179(4) of the Constitution states that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice” and because this is exactly what the NPA Act does.

    If Minister Mabandla gave such an instruction, it would be highly irregular and illegal and would, in the normal course of events, require her to be fired from the cabinet. Of course, this would never happen. This is because only fools and sycophants would argue that such a purported “instruction” – if it was given – was not first cleared or at least discussed with the President of our country.

    The President can hardly fire the poor woman for merely trying to do what he wanted or instructed her to do. If we had a well functioning democracy with evenly matched political parties and an electorate that voted for political parties based on performance and their respect for the law, such a revelation could well bring down the government.

    In South Africa it will only lead to more suspicion about the ways in which the President – through his Minister of Justice or on his own – had in the past interfered or tried to interfere with decisions of the NPA. If the Minister (and the President) thought that it was in order to give such an illegal instruction, what other instructions were given in the past to protect political allies and friends and persecute enemies?

    If I was a Jacob Zuma supporter I would point to this alleged letter as proof of the attitude of the government towards the NPA and would ask a few pertinent questions. If such a letter was issued in the case of Jackie Selebi, why not in the case of Jacob Zuma? If the government thought it could instruct the NPA like this, did it perhaps instruct the NPA to go after Zuma while not going after others implicated in the arms deal scandal?

    We will have to see what emerges at the Ginwala Enquiry, but it sure looks as if the President and his Minister of Justice had a very strange idea about the meaning of section 179(4) of the Constitution and the relevant sections of the NPA Act that guarantees the independence of the NPA to make decisions on the investigation and prosecution of individual cases.

    It also suggests that the ANC was perhaps barking up the wrong tree when it decided at their Polokwane conference to disband the Scorpions. If they wanted to stop the Scorpions from investigating ANC bigwigs, they might have started by looking at the role the Minister of Justice and the President might have played in decisions by the Scorpions to go after some ANC leaders while leaving others alone.

    But maybe the situation is a bit more complex and maybe the NPA had stopped taking orders from Mbeki and his Minister or had at least started resisting the illegal and unconstitutional interference of the Ngcuka era?

    While Bulelani Ngcuka clearly had a far too close and therefore constitutionally and legally inappropriate relationship with the previous Minister of Justice (what on earth was the Minister doing at a plea bargain meeting between Ngcuka and Tony Yengeni – was he out of his mind?), Vusi Pikoli (who is more of a technocrat than an out-and-out politician) might have started to put some distance between the NPA and the government to comply with the Constitution and the law.

    This recalls the statement made by an apartheid era Minister of Justice who complained once that the problem with judges were that once selected onto the bench they thought they were there on merit and had a bad habit of starting to think for themselves. Something to do with the legal training perhaps.

    This would however not have affected the decision by the NPA to investigate and then to prosecute Mr Zuma and he may well rightly feel hard done by. But this victimhood is somewhat artificial because if he had nothing to be ashamed of, there could not have been any investigation to begin with. Such a pity then, that Mr Zuma has still not explained why he had taken all that money from a convicted fraudster and then did all those favours for him and why he had met with an arms company whom the highest court of the land had confirmed had paid a bribe to him.

    If only he could charm us into forgetting about these findings made by the High Court and the Supreme Court of Appeal in the Schabir Shaik case, we might even begin to like (and, dare I say, trust) our President to be. One thing is for certain, I have long ago stopped trusting our incumbent President as he has shown a remarkable lack of fidelity to the truth.

    Kenneth, how could you?

    Feb 15th, 2008
    by Pierre De Vos.
    25 comments

    President Thabo Mbeki seemed rather miffed by the allegations made by Reverend Kenneth Meshoe that the President had lied to the nation when he told the South African Council of Churches to trust him on Selebi, and that no evidence of wrongdoing had been placed before him which would necessitate action against Selebi.

    Meshoe’s statement comes after it was revealed that Adv Vusi Pikoli had met with the President on 10 different occasions to inform him about the evidence against the Police Commissioner. According to the President he did not lie and acted against Selebi as soon as the NPA informed him that it had a prima facie case against Selebi.

    Having satisfied themselves that they had prima facie evidence suggesting that the National Commissioner had been involved in criminal misconduct, they informed me of this conclusion and their decision to charge the National Commissioner. At this point we informed the NPA that we were ready to assist them to inform the National Commissioner that he should willingly submit himself to the process of prosecution which the National Prosecuting Authority had decided to institute, which we did.

     

    I trust that the Hon Rev Meshoe will explain to this House and the nation why he saw it fit to make the grievous and gratuitous insult which sought to challenge not only the integrity of the person of the President of the Republic, but also the Office of the President and our Government as a whole. It cannot be that this resulted only from the careless use of words!

    I am not a great fan of the good Reverend, but I have to point out that there are two fundamental problems with the statement of our President about this matter.

    The first problem is, well, that this statement is demonstrably false. It is true that the President asked Mr Selebi to step aside after it became clear that the NPA would not revisit its original decision to charge the Police Commissioner. What the statement fails to admit is that a warrant of arrest had already been issued for Selebi in September and that the President had been informed then about the reasons for this.

    A few days after the first warrant was issued, the President suspended the Head of the NPA and the Acting Head of the NPA mysteriously had the warrant canceled.  This means the NPA had satisfied themselves that there was a prima facie case against Jackie Selebi several months ago and had informed the President accordingly. He responded not by asking Mr Selebi to step aside as he claimed in his speech, but by suspending the Head of the NPA.

    His statement yesterday in Parliament pretends that this first warrant was never issued  and that he was never informed about the reasons for it. The President had to pretend this first warrant never happened because it was the only way to explain his previous lies to the nation that no one had come to him with evidence of wrongdoing by the Police Chief.

    The truth is, the same evidence that led to second warrant against Selebi was used to get the first warrant but the first time the President failed to act. Now he is trying to rewrite history but to rewrite history he is required to lie. This is rather un-Presidential  – Presidents should try not to lie so blatantly as it tarnishes the office they hold. Just ask Bill Clinton.

    The second problem with the statement is that it suggests that no one in our constitutional democracy should make statements questioning the truthfulness of statements made by the President because it would constitute an assault on the integrity of the President and the Office he holds.

    This view seems to be based on a misguided notion that the President’s integrity should be above questioning and that to question the truthfulness of the President would necessarily show disrepscet to the Office of the President which is not acceptable.

    Fact is, the President is a politician. If he lies, we all have a right – no a duty – to call him to account and to try and get him to stop spreading his lies. If disrespect for the Office of the President results from this, it is based on the lies of the President and not on the questions posed by those who wish to expose the lies.

    The Constitutional Court confirmed many years ago in the Hugo case that the President is not above the law or above the Constitution and cannot claim immunity from questioning merely because of his office.

    In this case, the President clearly misled the country by claiming no one had brought any evidence to him about wrongdoing by the Police Commissioner after he had already met with the NPA boss 10 times and after a warrant of arrest was issued for the Police Commissioner. We have a right to point this out and the President cannot claim to be shielded from the truth – a truth he seems rather shy of – merely because of his office.

    He is not the King, he is an elected President and should behave like one.

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