Constitutional Hill

Kgalema Motlanthe

President Motlanthe’s sex life and public morality

Jan 27th, 2009
by Pierre De Vos.
29 comments

Things are obviously getting rather dirty in the internal battles in the ANC. What am I saying: not getting dirty, getting even MORE dirty. First there were the stories of President Kgalema Motlanthe thrashing the house he was renting in Sandton. And then this weekend, newspapers reported that our President – who is married – is conducting affairs with two different women while he is still married. One of the women is said to be pregnant with his child.

If this is all true – and President Motlanthe has not confirmed or denied these reports, so we do not know what is true and what not – the question is whether the newspapers should report on such matters at all. The ANC thinks not, and claims that our President’s rights to privacy and dignity protected by the Constitution have been infringed.

As a general rule, I think newspapers have no business to report on the private lives of politicians. I prefer the French rather than the US approach to these matters. The French has a firm belief that the private affairs of a politician will almost never say anything about that person’s fitness for public office and should be off limits for the media. Who cares if a politician has a mistress, is gay or lesbian, frequents prostitutes or is involved in a sex romp now and again?

I know I don’t. I care rather more about politicians sc@!wing ordinary voters by stealing our money, than about what they do in the bedroom.

This will change if the politician’s public statements and private actions clash violently. If the President was the chairperson of the moral regeneration movement, say, and speaks week after week about the need to respect traditional moral values, yet carries on affairs in secret, then it will say something about the credibility and honesty of that person and should be exposed. Or if he has just fired the Attorney General for not taking into account national security issues while he is privately carrying on an affair with a women who is a spy for Zimbabwe, then it should be exposed by the media.

If the politician is an ACDP leader and rails against homosexuality while sleeping with young men on the side, the same rule should apply. And if a politician is the Minister of Health and tells the nation that to prevent HIV, every person should only have one sexual partner at a time, yet is promiscuous in his or her private life, this information will clearly be relevant and should be exposed by the media. That is why the reports about our previous Minister of Health’s drinking problem and her cleptomania was probably acceptable: it spoke towards her rank hypocrisy.

But as a general rule, I think the private morality of a politician has nothing to do with us voters and we should allow our politicians to live their lives in private – no matter how messy these lives might be. But the public morality of politicians requires that they are more or lest honest, that they should not behave like rank hypocrites and that they should more or less practice what they preach. If they fail to do so, it will say something about their public morality and then their private lives should become fair game for the media.

In principle I therefore agree with the ANC stance on this issue. Where I differ with the ANC, is where it says these reports violate President’ Motlanthe’s right to dignity and privacy.

First, the ANC is confusing the common law notion of dignity and the constitutional notion of the right to dignity. The former is a subjective notion, speaking to the dignitas of a person, that is the feelings a person has about him or herself. It is subjective and refers to the person’s feelings and standing in the community. Common law deals with breaches of this kind of dignity through defamation law, for example.

The more important a person is, the easier it would be to show his common law dignity has been interfered with – but this is not a  human rights issue. He or she can sue the newpaper for defamation if he or she wants, but cannot claim an infringement of his right to dignity, merely because he or she feels hurt and embarrased about what was written. That kind of subjective dignity – which might even be constitutionally problematic because it does not afford all people equal protection of the laws – is not what is protected by our Bill of Rights.

On the other hand, the right to dignity refers to dignity in the objective sense. It does not refer to the feelings of a person, but to the notion that every person – objectively speaking – has an inherent and equal dignity because he or she is a human being. This dignity cannot be taken away by law or by media action, because it is inherent in being human. When newspapers report on the private life of a President, they are not interfering with this right to objective dignity – even if the reports might hurt the feelings of the President. It will only be where the media treats a person as if he is not really fully and equally human that the right will kick in.

As for the President’s privacy, I suspect he would have a rather uphill task to convince a court that a report about his relationships with various women infringes on his right to privacy. This is because the Constitutional Court has said that the privacy right is layered – like an onion. The more private the person and the more private the act, the stronger the protection. The more public the person and the more public the behaviour, the less the protection.

So, a right to privacy will almost always be infringed when a newspaper reports on the consensual private sexual acts of a private citizen conducted in private. Even public figures might be protected from salacious reporting of very intimate details that will not make any contribution to the enhancement of democracy. Thus, reporting details of President Motlanthe’s sex life will almost certainly infringe on his right to privacy – unless he has taken a stand agains same-sex marriage, say, and has had a night of passion with an 18 year old boy, because this information will then become important for us voters to make decisions about our democracy.

Where the newspaper reports on issues affecting the spouse of our President – our first lady, so to speak – then it might well be ethically wrong to do so, but would probably seldom infringe on either the President’s or his or her spous’s right to privacy. If he or she wanted absolute privacy about a marriage, the President should never have become a politician. As us tax payers foot the bill for costs incurred by the President’s spouse, there is some public benefit of information about his affairs being published.

I still think in this case the reports should not have been published because the link with the exercise of our right to vote is so tenuous and the sleazyness of the reporting so problematic that it probably does not enhance the working of our democracy. Let the President be. Unless he steals our money of course or takes a bribe from a friend or an arms company. Then, please tell us all about it.

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. . . .

Rule of Law or above the law?

Jan 5th, 2009
by Pierre De Vos.
34 comments

It has become an all too depressing story: some bigwig politicians or their VIP protectors who mouth platitudes about being servants of the people around election time but really have egos the size of China, drive in a screaming cavalcade of cars to a very important lunch date or a drinks date with a gilrfriend, when suddenly something goes wrong and a poor motorist who happens to have been around is injured or killed.

I find this kind of story so depressing because it seems to suggest that human beings have an uncanny yearning to be pompous and self-important and that servants of the people think they are better than the rest of us and do not have to abide by the law.

At the end of last year a newspaper reported that Mr Jacob Zuma travelled in a convoy of 33 vehicles while campaigning in Limpopo. Even though Zuma is not a public office-bearer, 22 of these vehicles belonged to state law enforcement agencies, and the whole cavalcade stretched for over a kilometre. Traffic officers forced traffic in both directions off the road; crossings on the route were blocked off so that the convoy could proceed without interruption; and roadblocks were set up to stall other motorists.

And just today it was reported that the presidency’s VIP protection unit confiscated equipment from the SABC during a scuffle on the N12 outside Johannesburg after President Kgalema Motlanthe’s motorcade was involved in an accident on the highway, east of Johannesburg on Saturday.  A red VW Golf apparently collided with a car in the president’s convoy. Motlanthe was unhurt. When SABC journalists arrived, their footage was confiscated.

Who the hell do these politicians think they are? Why can’t they follow the rules of the road like us mere mortals? Why do they think they are so important that they can break every traffic rule in the book while they tell the rest of us to “Arrive Alive”? The bloody cheek.

It depresses me no end that politicians in South Africa follow the American example instead of, say, the example of the Netherlands or Belgium where Ministers often are seen cycling to work – even when the TV cameras are not turned on. There are two reasons why I find this kind of dangerous and stupid behaviour so depressing.

First, the huge cavalcades and the blue lights reflect so badly on the character of our politicians. It suggests that they have such little inherent regard for themselves and loath themselves so much that they have to puff themselves up with this kind of ridiculous show of importance. The men are probably all worried about the size of their equipment and their virility and think they can make up for this with the size of their convoy. How tacky. How embarrassing. How laughable. They are worst than the dictator in the Coke add.

Second, the speeding convoys also suggest that some politicians think that they are above the law and that they do not need to respect the Rule of Law. If this is what they do in broad day light, for all to see, what are they then doing behind closed doors. What rules are they breaking far away from the limelight?

No wonder corruption is on the increase in South Africa. With insecure fools like this setting the example, who can blame the average traffic cop earning a pittance for also breaking ther rules. But of course, none of these politicians or the protection service personnel will ever be charged so they will remain innocent until proven guilty and thus in the eyes of pshycophants will remain pure as the driven snow.

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.

    Don’t hold your breath for an arms deal commission of inquiry

    Dec 3rd, 2008
    by Pierre De Vos.
    120 comments

    A joint letter signed by Nobel Peace laureates Desmond Tutu and FW de Klerk has been delivered to President Kgalema Motlanthe’s office on 2 December 2008, urgently requesting that he institutes an independent and public judicial  commission of inquiry into the arms deal. The letter argues that:

    the widest possible investigation into impropriety and corruption is appropriate. The commissioners should be required to indicate who, if anyone, should face prosecution and on what charges. There should also be an investigation into the possibility of cancelling arms deal contracts tainted by corrupt and fraudulent dealings, and recovery of payments already made. The urgency of the matter is self evident. The country is moving towards a general election, and the voters are entitled in the spirit of free and fair elections to be informed about what has become a major scandal in the country’s political discourse. Should you decline this petition, we respectively request that you furnish the reasons for your decision.

    But what happens if President Motlanthe refuses to appoint such a commission? Could the Constitutional Court order him to appoint such a Commission? Would it ever issue such an order? I am afraid the answer to both questions is almost certainly no.

    The argument being made is that section 84(2)(f) of the Constitution states that the President “is responsible for… appointing commissions of inquiry”. Moreover, section 83(b) states that the President “must uphold, defend and respect the Constitution as the supreme law of the Republic”. This means the President has a duty to take steps to uphold the founding values of our Constitution, especially section 1(d) which states “the Republic of South Africa is one, sovereign, democratic state founded on”, amongst others, “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

    Given the widespread credible allegations of corruption in the arms deal, so the argument goes, the President has a constitutional duty to apppoint a full commission of inquiry to ensure accountable, responsive and open government. If he fails to do so he would be failing in his duty to uphold, defend and respect the Constitution – and the Constitutional Court would have the power to order him to do so by appointing a commission of inquiry.

    If I had any money to spare, I would take a sizable bet that this argument is not going to fly with the Constitutional Court. There are several reasons for my scepticism.

    The power of the President to appoint commissions of inquiry stems from the prerogative powers, which in the United Kingdom rested with the monarch and always had a strong political discretion attached to them. Although these powers have now definitively been captured in our Constitution, they have  retained their strong political dimension and as the Constitutional Court made clear in the Hugo case the exercise of these powers would very seldom be reviewable by a Court.

    Where these powers are exercised (or not exercised) a court would only intervene if the decision by the President was irrational. One would have to show that the decision was arbitrary, capricious or in bad faith – something that would be very difficult to do, given the many different policy options open to the President to fulfill his constitutional duty to uphold and defend the founding values of openness and accountability in our democracy.

    This is appropriate because the separation of powers doctrine requires our courts to respect the power of the executive to make the kind of political choices associated with a decision to appoint or not to appoint a commission of inquiry. Even if the Constitutional Court could be persuaded that the President had failed to defend the values of openness and accountability enshrined in section 1 of the Constitution because allegations of corruption in the arms deal have not been dealt with decisively, it would not order the President to appoint a commission of inquiry into the arms deal because the judges would feel this would interfere with the powers allocated by the Constitution to the President (and not to the court).

    Of course, it would be rather difficult to convince the Constitutional Court that the President had not defended these constitutional values, given the fact that an investigation into the arms deal had already been conducted by the NPA, the Auditor General and the Public Protector. The report produced by these agencies was of course doctored by President Mbeki, but this in itself would probably not be enough to convince a court that the President has failed in his constitutional duties.

    Judge Nicholson did suggest that the President should institute such a commission, but I am quite convinced that these kinds of mutterings (just like his findings about the political conspiracy)  would never have been made by the Constitutional Court. The latter court is far too aware of its appropriate role in our system of constitutional democracy based at least partly on the principle of the separation of powers. As a matter of judicial politics it is a non-starter.

    Having said that, it is interesting to note that apart from Trevor Manuel, none of the individuals or organisations implicated in arms deal corruption have sued those who had made these allegations. While Thabo Mbeki’s lawyers immediately sprang into action after the Nicholson judgment in effect found that he had interfered with the NPA, he has not sued the Sunday Times for alleging that a bribe of R30 million was solicited from a succesful arms bidder and that R2 million was given to Jacob Zuma and the rest channeled to the ANC. Come to think of it, neither has Zuma sued anyone for this scandalous allegation – despite the fact that he has taken action to sue a cartoonist and some newspaper editors for making fun of him.

    I imagine in a defamation case, the ANC (and Zuma) would be requested to provide information about their finances and this information may well provide embarrassing details or even incriminate them. No wonder no one has sued either Andrew Feinstein or the Sunday Times for alleging the ANC received money from at least one of the succesful bidders in the arms deal.

    That is also why our President will probably not appoint a commission of inquiry into the arms deal as the Commissions Act provides wide powers for a commission to summon witnesses and to compel them to provide books, documents or other material requested by the commission. If I was the ANC Deputy President, the last thing I would want to do was to appoint a commission of inquiry that could summons all the financial records of the ANC since 1997. (But if that commission could be persuaded only to get their hands on all Zuma’s financial records, that might be helpful if one wanted to remain President after the election!)

    Imagine what a field day the press would have with all the dirty little secrets on ANC funding that will emerge – even if it turned out that no money was paid by arms bidders to the ANC. Nee wat, there is no chance that our President will appoint this commission. Nice try though.

    Kgalema Motlanthe, HIV/AIDS and the ANC

    Nov 27th, 2008
    by Pierre De Vos.
    86 comments

    The Presidency of Thabo Mbeki was in many ways an utter disaster. Insecure, angry, vindictive and far too sure of his own ability to know everything and be the cleverest person in the room, Mbeki acted in ways that had devastating effects on especially poor and black South Africans. This was never more evident than on the issue of HIV/AIDS.

    As I pointed out last week, a new study by Harvard researchers estimates that the South African government would have prevented the premature deaths of 365,000 people earlier this decade if it had provided antiretroviral drugs to AIDS patients and widely administered drugs to help prevent pregnant women from infecting their babies.

    Yesterday the New York Times published an article about this study, reminding us again how disastrous Mbeki and his Minister of Health have been to the health of our people. That is one of the reasons why I do not share Archbishop Desmond Tutu’s view that the recalling of Mbeki was a dreadful and constitutionally problematic step.

    Our Constitution requires that the President retains the confidence of the majority of the members of the National Assembly and if he or she loses that confidence, the NA can institute a vote of no confidence in the President. That is how our quasi-Westminster system was designed to operate and there was nothing wrong with the ANC recalling Mbeki after it lost confidence in him. In fact, Mbeki should have been recalled long ago and it is an indictment of the ANC that it took so long for them to get rid of this man.

    That is also why, so far, I am a rather big fan of President Kgalema Motlanthe, who acted on the first day of his presidency two months ago to remove the health minister, Manto Tshabalala-Msimang, a polarizing figure who had proposed garlic, lemon juice and beetroot as AIDS remedies. The subsequent appointment of Barbara Hogan was also an inspired choice. According to the New York Times Hogan said:

    “I feel ashamed that we have to own up to what Harvard is saying,” Ms. Hogan, an A.N.C. stalwart who was imprisoned for a decade during the anti-apartheid struggle, said in a recent interview. “The era of denialism is over completely in South Africa.”

    What a breath of fresh air! Just imagine how Ms Tshabalala-Msimang would have responded to this study and weep for South Africa and its long suffering people. A President who can fire an incompetent and criminally negligent Health Minister and appoint a person of the caliber of Hogan would get my vote. Pity he will not be the ANC’s election candidate next year.

    But the New York Times article also contains other very interesting tidbits. It refers to an article written by Ngoako Ramathlodi in which he recounts the way in which Nelson Mandela was humiliated during a 2002 ANC meeting after he made a rare appearance to question the party’s stance on AIDS.

    Mr. Ramatlhodi described speakers competing to show greater loyalty to Mr. Mbeki by verbally attacking Mr. Mandela as Mr. Mbeki looked on silently. “After his vicious mauling, Madiba looked twice his age, old and ashen,” Mr. Ramatlhodi wrote.

    Mr. Ramatlhodi himself acknowledged in a recent interview that in 2001 he sent a 22-page letter, drafted by Mr. Mbeki’s office, to another of Mr. Mbeki’s most credible critics, Prof. Malegapuru Makgoba, an immunologist who was one of South Africa’s leading scientists. The letter accused Professor Makgoba of defending Western science and its racist ideas about Africans at the expense of Mr. Mbeki.

    In 2000 Mr. Mbeki had provided Professor Makgoba with two bound volumes containing 1,500 pages of documents written by AIDS denialists. After reading them, Professor Makgoba said in an interview that he wrote back to warn Mr. Mbeki that if he adopted the denialists’ ideas, South Africa would “become the laughingstock, if not the pariah, of the world again.”

    But Mr. Mbeki indicated last year to one of his biographers, Mark Gevisser, that his views on AIDS were essentially unchanged, pointing the writer to a document that, he said, was drafted by A.N.C. leaders and accurately reflected his position.

    The document’s authors conceded that H.I.V. might be one cause of AIDS but contended that there were many others, like other diseases and malnutrition.

    The document maintained that antiretrovirals were toxic. And it suggested that powerful vested interests — drug companies, governments, scientists — pushed the consensus view of AIDS in a quest for money and power, while peddling centuries-old white racist beliefs that depicted Africans as sexually rapacious.

    “Yes, we are sex crazy!” the document’s authors bitterly exclaimed. “Yes, we are diseased! Yes, we spread the deadly H.I. virus through our uncontrolled heterosexual sex!”

    The letter written by Mbeki’s office contains astonishing new proof of Mbeki’s denialism. In the usual Mbeki way, it refers to the very real and despicable racism prevalent in the West, and then uses this to question the science around HIV/AIDS. It is astonishingly lacking in logic and suggests to me that Mbeki may not be as clever as we thought he was. It argues that because public health policy in the West has often been informed by racism, the scientific research on HIV  and ARVs – done in laboratories in the West to save the lives of people in the West – must also therefore be suspect.

    So for Mbeki, HIV tests, the science around the causes and progression of HIV and the miracle ARV medicines developed in Western laboratories now saving the lives of millions of people around the world, cannot be trusted because to trust this would be to accept a view of Africans as rapacious, sexual beings. Mbeki’s letter also questions whether South Africa has an HIV problem at all – despite the fact that between 12 and 20% of pregnant women tested at clinics are found to be HIV positive. Who cares about scientific tests and the lives of ordinary poor and black South Africans if wounds have to be licked, scores settled and arguments won? This letter should be exhibit A in the indictment of Mbeki’s Presidency.

    But what also struck me of the article is the fact that all those ANC NEC members were “competing to show greater loyalty to Mr. Mbeki by verbally attacking Mr. Mandela”. Mr Zuma did not speak up then. Neither did Mr Ramatholdi. They sat there quietly while their leader was promoting quackery masquerading as a politically correct pro-African intervention. Why did so few speak up then? Were they scared of Mbeki? And if so, what does it say about their honour and their commitment to the betterment of the lives of the masses of our people? Why did they choose to rather keep the leader happy than to do something that would save the lives of hundreds of thousands of South Africans? How do they sleep at night?

    Now Ramatlhodi – and many others who sat quietly while Mbeki’s quackery was allowed to kill thousands of South Africans – are of course Jacob Zuma supporters. Will they (are they already?) showing the same kind of disastrous loyalty to a new leader with feet of clay? Is that the inevitable result of a mindset that holds the Party and the Leader to be more important than principle, than the truth, than the lives of our people?

    Is that why there is not a snowballs hope in hell that the ANC will ditch Zuma and nominate Motlante to be our President after the next election? Is the ANC doomed to repeat the mistakes it made in the past by blindly following Zuma over the cliff? We will see. If Hogan is retained as health minister after the election, if the NPA is allowed to try and prove its case against Zuma in court, if ANC leaders do not sit silently by while Zuma and his cohorts undermine the judiciary, I would be the first to admit that maybe the ANC has learnt something from the Mbeki disaster.

    For the sake of South Africa and all its people, I sure as hell hope it has.

    Who will replace Judge Madala?

    Oct 14th, 2008
    by Pierre De Vos.
    97 comments

    The Judicial Services Commission (JSC) is currently interviewing candidates to fill the post of Justice Tholie Madala on the Constitutional Court. Business Day reports this morning that two of the six judges who are candidates for appointment to the Constitutional Court — Supreme Court of Appeal Judge Chris Jafta and Grahamstown High Court Judge Frank Kroon — withdrew their applications at the last minute yesterday.

    The judges are entangled in the controversy surrounding Western Cape Judge President John Hlophe and the Constitutional Court as theyw ere both acting judges on the Constitutional Court when Judge President Hlophe allegedly approached judges of the Constitutional Court about the Zuma matter.

    It is difficult to know why these judges withdrew but I would guess the JSC decided that it would be inaprpriate for them to consider the application by these two judges before the complaints against and by Judge President Hlophe have been dealt with.

    Had the JSC considered the applications of these two judges and had they recommended any of these judges for appointment, Judge President Hlophe’s legal advisers could easily have argued that the JSC had pre-judged the case. It would then have been possible to say that the JSC had  created the impression that  it believed the allegations made by Jaftha against the Judge President. Justice would then not have been seen to be done. The Constitutional Court judges could have argued the same thing if the judges were not recommended for appointment.

    Although unfortunate, it was therefore probably a wise move for the judges to withdraw their applications at this stage in order to ensure that the JSC deal with the Hlophe matter without exposing themselves to charges of bias.

    The withdrawals leave just four candidates for the post — the exact number required by the constitution to be submitted to the president to choose from. These are Supreme Court of Appeal (SCA) Judge Edwin Cameron, high court judges Shehnaz Meer and Nigel Willis, and Northern Cape Judge President Frans Kgomo.

    Obviously the name of Justice Edwin Cameron stands out among these candidates. As I had argued before, a candidate should qualify for a position on the Constitutional Court if he or she has the requisite legal skills and knowledge as well as the commitment to social justice required by the Bill of Rights. Cameron clearly has both. Although he was recommended for appointment before, then President Thabo Mbeki did not appoint him, probably because of Cameron’s harsh (but courageous and true) criticism of Mbeki’s stance on HIV/AIDS.

    In his interview yesterday Cameron acknowledged that he might have “overstepped the line” with his outspoken public criticism of Mbeki and then-Health Minister Manto Tshabalala-Msimang’s poor leadership on HIV/AIDS but said that his own 22-year battle with the syndrome had left him feeling ‘that I could not keep quiet’. According to a Cape Times report, he told the JSC:

    “I thought I was going to die at the end of 1997 … I was desperately sick, but my life was given back to me (through anti-retroviral treatment) …and I felt that I had to speak up.’ Cameron was then asked by Marumo Moerane SC, if his own HIV-positive status would stop him from hearing HIV-related cases brought before the Constitutional Court. The judge responded that he would not hear cases related to HIV treatment. Justice Minister Enver Surty, who attended the commission’s sitting, told Cameron that he ‘empathised’ with his struggle.

    One may argue that judge Shehnaz Meer – who also displayed a strong commitment to social justice in her interview yesterday – might also get the nod from the Presaident despite the fact that she does not have the same technical knowledge of the law that Cameron has, seeing that there are currently only three women on the Constitutional Court.

    But I would argue that given his vast knowledge of the law, his technical brilliance, and the fact that 5 million South Africans are living with HIV, the selection of Cameron would be the wise and correct choice. It would also be a bold affirmation of the rights of people living with HIV and would send a strong signal countering the prejudice and hate still experienced by people living with HIV.

    Although the JSC can indicate their preferences when they forward the names to President Motlanthe, the President has the final say in this matter. If he chooses Cameron it will signal a move away from the vindictive attitude of Thabo Mbeki and will say much about Motlanthe’s integirty and wisdom. If it is not Cameron, it will be a sign that Motlanthe might not always be in a position to do the right thing and might be taking instructions from Luthuli house.

    I am waiting with bated breath for the outcome because not only will it tell us something about our new President, it will also decisively influence the quality of the members serving on the Constitutional Court.

    Lekota’s announcement: what now?

    Oct 8th, 2008
    by Pierre De Vos.
    79 comments

    The announcement by Mosioua Lekota this morning that he will call a convention to form a new political party that will contest the election next year is obviously going to shake up South Africa’s politics. Lekota’s statement suggests that the new party will try and position itself as the “true” ANC while painting Jacob Zuma and his supporters as having betrayed the values of the Freedom Charter and the principles espoused by the ANC.

    It is too early to tell what impact this move will have on the ANC’s electoral fortunes. Much will depend on how many people – grassroots organisers and other members – within the ANC decide to join this new formation and to what extent the new formation can convince voters that its members are acting out of principle and not because of sour grapes. Much will also depend on how the ANC leadership deals with this move.

    Some might argue that the timing of this move to form a new party will hamper the new formation because they have very little time before the next election to establish a grassroots presence all over South Africa. Running an election campaign is a difficult task requiring special skills, hard work and lots of money.

    But the timing might actually work in favour of the new grouping. If enough disgruntled ANC MPs and party members feel that they have been marginalised by the Zuma leadership, they might be prepared to give up their positions to fight for the new party as they might feel they have nothing to lose.

    If this had happened just after the election (and given the fact that floor crossing is being scrapped) many ANC members might not have joined the new formation because it would have spelt the end of their jobs. But if the Zuma faction acts in an arrogant manner and fails to send signals to the Mbeki faction that their jobs are safe, many of them might jump ship. This will provide the new party with an instant grassroots presence and organisational structure that might be able to make electoral inroads.

    This is a huge test for Zuma, Motlathe and Mantashe because I am sure the first reaction of the hotheads within the ANC NEC will be to act in an arrogant and dismissive way towards the new party and towards those who feel disgruntled by recent events within the ANC. If these hotheads are not reighned in, the ANC might hemmorrage members to the new party who will then have instant structures on the ground to help it mobilise for the election.

    Meanwhile, expect the politics to get rather dirty over the next few months. Those who leave the ANC may well have some secrets that it might want to tarnish their old party and old comrades with. I would not be surprised if we have a few sensational leaks to the Sunday Times in the next few weeks regarding ANC corruption and finances.

    The ball is now in the ANC’s court. How will the leadership deal with this crisis? If the Malema’s of the world have their say, they will deal with it in a disasterous manner, so if I was Lekota I would hope that – like with the firing of Mbeki – the reasonable people within the ANC are not listened to.

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