Constitutional Hill

Thabo Mbeki

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.

    Mbeki’s letter: how I miss those Friday missives

    Oct 31st, 2008
    by Pierre De Vos.
    86 comments

    When Thabo Mbeki was still President of the ANC it was one of my great pleasures (and ,I thought, duties) to read the letter from the President every Friday afternoon on ANC Today. Not that I always agreed with then President Mbeki or always found his arguments convincing or even plausible – Mbeki had a tendency to grab onto a very real issue  (racism, poverty, respect for each other) and then misuse the issue to advance his own political agenda. Who can forget his use of racism in his vicious attack on the “fishers of corrupt men” when he wanted to push back against the very real questions of corruption in the arms deal?

    But the letter often made for interesting and even entertaining reading and if it did not, it still was one of the few places where one could find out what the hell this very strange, lonely, stoic and self-important man was thinking. I suspect it often revealed more about Mbeki’s phsycology than he might have known.

    So I was rather nostalgic when I read the letter Mbeki sent to Jacob Zuma earlier this week. There was the National Democratic Revolution (NDR), the references to past heroes, the thinly disguised hurt pride – all the great themes of the Mbeki letters over the years. And there again was the use of a very real issue (“the noxious phenomenon of the personality cult”), deployed to attack a fellow comrade (in the most indirect of ways, of course).

    It therefore came as a surprise to me that anybody within our revolutionary democratic movement could so much as suggest, and therefore insult somebody like Terror Lekota that he could act as he has, whether rightly or wrongly, driven by attachment to a personal cult!

    In this context, given that I have worked longer with you than I have worked with Terror, I would be interested to know your view of any instance in our movement during which it fell victim to the noxious phenomenon of the personality cult, as a result of which it ceased to think, content to act in the manner of the “anointed personality”, such as the late Kim Il-Sung determined to the people of North Korea!

    Ouch! Can it be that Mbeki is subtly saying that Mr Zuma is in danger of becoming a cruel dictator, like Kim Il-Sung? Perhaps, because he continues:

    The beginning and the end of this particular discourse is that both of us have grown up in a political atmosphere that we fully respected and honoured our leaders, heroes and heroines without reservation.

    However, for me personally, at no point did this translate into “hero worship” and therefore the progression to the phenomenon of the “cult of personality”. I know this as a matter of fact that all the heroes and heroines I have mentioned would have opposed the emergence of such a cult with every fibre in their revolutionary bones!

    For this reason I find it strange in the extreme that today cadres of our movement attach the label of a “cult of personality” to me, and indeed publicly declare a determination “to kill” to defend your own cause, the personal interests of “the personality”, Jacob Zuma!

    Some would of course argue that Mbeki is rather disingenuous here. He says in the ANC leaders are “respected and honoured without reservation” but that “for him personally” this never translated in hero worship. Some of us who lived through the height of the Mbeki years might wonder a bit about this statement as some of Mbeki’s followers sure gave a good impression of hero worshipping their leader .

    I am also not so sure I understand the difference between respecting and honouring the leaders of your party “without reservation” on the one hand, and hero worship on the other. It seems to me the former will inevitably lead to the latter if not checked by an dollop of skepticism. I for one will never respect and honour any leader without reservation because I think in a constitutional democracy leaders are the servants of the people and should thus be subjected to serious scrutiny, criticism and – where they do really evil things like confuse people about the link between HIV and Aids – even vilified and ridiculed.

    Maybe this is where the ANC as a movement might have gone wrong. Instead of the vigorous debate and arguments and the challenging of leaders who did or say things that were stupid or wrong that was part of the UDF, the party encounraged this kind of blind discipline and loyalty to the Leader. While Mbeki never encouraged the same cult of personality that Zuma and his supporters have, this notion that leaders are somehow above criticism (at least in public) probably made it so much easier for the Malema’s of the world to get to statements about how they would kill for Zuma.

    In this regard (as Mbeki might have said) I find the letter rather sad because it does not show a hell of a lot of self-knowledge on the part of our ex-President. Has he learnt nothing about himself and his own limitations over the past year? He clearly never spent time getting in touch with his own contradictions and seems so angry, yet so controlled.

    There is not one jot of self-reflection in the letter. Nor is there any sense that he might have done anything differently. How can that be? Surely this is not normal? Any normal person (and I exclude Kim il-Sung here) will at least sometimes have doubts and regrets about hhow they have acted. Yet Mbeki can write without apparent irony that:

    There is absolutely nothing I have done through this half-a-century of struggle of which I am ashamed. Above all, I know of nothing I have done which, to my knowledge, constitutes a betrayal of the interests of the masses of our people and their confidence in the ANC.

    That sounds a bit scary to me. Nothing, comrade Mbeki? Not even instigating the plot rumours against Ramaphosa, Sexwale and Phosa? Not even when you confused people about HIV and AIDS? Not when you decided to stand for a third term thereby allowing a Zuma victory at Polokwane? Such a breathtaking lack of self-criticism is indeed sad. But it is also very, very scary. Cult of personality or not, leaders who are not self-critical do not – in the long run – turn out to be great democrats.

    But hell, maybe I am just a misguided democrat who does not think one man or one party is more important than our democracy.

    Criticism of Nicolson judgment hypocritical?

    Oct 21st, 2008
    by Pierre De Vos.
    26 comments

    In the recent Financial Mail Professor Robin Palmer, director of the Institute for Professional Legal Training, University of KwaZulu Natal, suggests that those who have criticised the judgment of Judge Chris Nicholson in the Zuma case have perhaps been hypocritical.

    He points out that weeks before the Zuma case, Nicholson and judge Kevin Swain presided over a challenge by the City of Cape Town and the Democratic Alliance over the legality of the Erasmus Commission set up by ANC Western Cape premier Ebrahim Rasool and that the court found that not only was the appointment of a sitting judge (Nathan Erasmus) to chair the commission unlawful and invalid, but that Rasool’s motive had been an improper attempt to embarrass the DA.

    The judges went further, finding that Rasool had unlawfully obtained information discovered in police search and seizure operations from the province’s police commissioner, Mzwandile Petros. The effect of this judgment was that the premier misused the judiciary and the police to set up an illegal commission to embarrass a political opponent. Yet there was no outcry accusing Nicholson and Swain of meddling in politics or going beyond their mandate.

    The framing of the issues in Nicholson’s Zuma judgment appears to have required a similar contextual approach, as Zuma’s papers made the alleged political motives underlying the decision to prosecute him issues for the court to decide (though it appears this aspect will be disputed by the NPA on October 22). It may well be that a court of appeal finds that Nicholson erred in making certain factual findings, or that he was legally prohibited from even considering the allegations of political interference.

    Whatever the eventual finding, in both these cases Nicholson was prepared to confront the elephant in the room: the virtually incontrovertible evidence of widespread and systematic abuse of crucial public offices for factional party-political advantage. In doing so, he has done us all a favour.

    Palmer might have a point. The difference between the response of commentators to the Zuma  judgment on the one hand and the Rasool judgment on the other, is striking. In both cases the judgment went further than the technical legal point before the court and addressed what the judge saw as the political meddling inherent in the case.

    I happen to think both judgments went too far and that judgments like these open up the judges involved to charges of political meddling and overreach. In the Rasool case, the judgment made a finding about the motive with which Rasool had appointed the Commission of Inquiry without the benefit of oral evidence and cross examination of witnesses. In the Zuma case, the judgment did exactly the same thing regarding the interference with the decision to prosecute Zuma.

    The judges might well be right on both points – who knows? – but should they make findings on such politically charged matters without having heard proper evidence on these matters? I think not. (although the finding in the Rasool case was more pertinent to the legal issue at hand so it might be slightly more excusable.)

    I therefore think Palmer is wrong in suggesting that it was acceptable for Nicholson to have made pronouncements on issues that had nothing to do with the law and everything to do with party politics.  For example, Nicholson’s comments that it was unfair and unjust of then President Mbeki to fire Jacob Zuma as Deputy President was utterly uncalled for and completely irrelevant for the decision of the legal issues.

    The hiring and firing of the cabinet is the prerogative of the President and has nothing to do with the judiciary. Although we might all have political views on this issue, it has absolutely nothing to do with the law and a judge should not poke his nose into such matters – otherwise he might endanger the legitimacy of the judiciary and drag himself and the judiciary into the party political arena. In the long run this would be fatal for the independence and impartiality of the judiciary.

    Just as the firing of Thabo Mebki was a political decision open to political debate, but beyond the jurisdiction of a court, so the firing of Zuma was a political decision beyond the reach of judges. If one is a banana one must be prepared to be eaten, so a politician must not complain to a court when he or she is fired – no matter how unfair he  or she might think this might have been. Politicians do not have job security in a democracy and that is a good thing. Get over it and move on.

    That is also why I though Archbishop Emeritus Desmond Tutu was talking through his nose when he bewailed the firing of Mbeki as a terrible day for South Africa. We might agree or disagree with Mbeki’s firing, but that is how politics work and there is nothing earth shattering about it. Tutu’s reaction thus seemed completely over the top and betrayed a lack of understanding of how politics work in a democracy.

    Those who criticised the Nicholson judgment for political meddling should – if they were to be consistent – therefore also have to criticise the judgment in the Rasool matter. Very few have. Maybe this is because the pundit class agreed with the outcome of the Rasool case but not with the outcome of the Zuma case.

    Palmer may therefore have identified a rich strain of hypocrisy amongst the pundits and that would not be a bad thing.

    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.

    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.

    Zuma’s response to Mbeki court case

    Oct 3rd, 2008
    by Pierre De Vos.
    54 comments

    Michael Hulley, the attorney for Jacob Zuma, has consistently shown that he is brilliant at representing his client. I am saying this not so much because of the quality of the legal arguments produced by him and the team of lawyers for Zuma in the various cases, but because he has always shown a keen understanding that Zuma’s various legal battles form part of a larger political battle to ensure that Zuma becomes President next year.

    My reading of his affidavit lodged with the Constitutional Court in response to Thabo Mbeki’s application to   review and set aside some of the findings of Judge Nicholson, confirms this view. The first hundred paragraphs of his affidavit is thin on legal arguments, but quite rich in background detail and innuendo that might help to paint Thabo Mbeki as someone who has something to hide.

    He argues, in effect, that Mbeki was the author of his own misfortune because he had consistently failed to intervene in the various Zuma applications, despite the fact that allegations of political interference were made in most of them. Hulley points out that the filing of the application in the Nicholson case was accompanied by a Rule 16A notice inviting submissions from any potential amicus curiae, inviting any party who wished to place material submissions relevant to the proceedings before the Court, to do so. He then points out:

    Of course such a party would, if the factual contents of his affidavit were contentious, face a very real possibility that the matter would have to be dealt with on the basis of oral evidence…. The Applicant’s failure to provide the NDPP with countervailing evidence, or to join in the proceedings, was in contention, a deliberate one with knowledge that findings or reasoning which may in a general sense constitute adverse comment on Mr Mbeki or other persons in Government may result. Such conduct is completely in line with Mr Mbeki’s conduct in dealing with such matters in the past.

    Mr Hulley is therefore suggesting that there might have been good reason for then President Mbeki not to intervene in this matter as he might have been required to give oral evidence and might have been “exposed to the risk of cross examination”. This argument is put forward to show that a party “cannot have the rights and benefits of a litigant by joining in at the appeal time and at the same time escape the risks of being a litigant from the start”.

    The Applicant seeks a final order effectively expunging all references to him and a variety of other persons in the judgment on the basis that he (and presumably whoever may have been at risk of an unkind statement in that judgment) was not before the Court. He thus avoids the risk of all findings implicating him, the risk of having to adduce evidence and the risk of being challenged in respect of such evidence. The only relief (and I dispute the entitlement thereto) that makes any sense is then to set such findings aside and refer it back to the Court a quo, declaring Mr Mbeki a party to the proceedings and giving the First Respondent leave to supplement its papers concerning the issue of political interference.

    The contention is, however, that the Applicant deliberately decided not to join the dispute between the parties and took the risk of adverse comments appearing as part of the reasoning in the judgment. The Applicant of course never took the risk of any order or judgment being made which operated against him or was binding on him.

    This is quite a good legal point. But it also makes a subtle political point, namely that Mbeki might not have wanted to give evidence and be cross examined because he would have been exposed as a liar. It is never explicitly stated, yet the subtle suggestion is that President Mbeki has something to hide and therefore chose not to run the risk of being exposed as a less than honest man.

    In responding to the specific arguments and submission made by Mbeki, Hulley points out several times that while Mbeki denied the truth of many of the inferences drawn by Nicholson, he fails to provide any evidence to back up his denials. In paragraph 131 he again says that Mbeki “evidently remains reluctant to place his version before the Court, despite the fact that it is he who has peculiar knowledge of the true facts”!

    If I was Thabo Mbeki I would be quite incensed by this affidavit because it hints throughout that Mbeki is reluctant to provide evidence and is thus hiding something. What could he be hiding? Well, although it is never said, the implication is that he is hiding from the truth, which is that Mbeki did indeed interfere in the Zuma prosecution.

    Throughout this affidavit one finds subtle perpetuation of the narrative that Mbeki is a deceitful man.

    And then he in effect calls Mbeki’s bluff by saying that if these allegedly scandalous and vexatious allegations of political interference are untrue, Mbeki is of course perfectly entitled to sue Zuma for defamation. He also points out that Mbeki can complain to the JSC if he thinks that Nicholson acted in a way unbecoming of a judge.

    This is an interesting point. Twice now – first regarding the allegation that Mbeki faciliated a R30 million bribe from an arms company for the ANC and Zuma and then regarding the allegations of political interference – Mbeki has had the option of lodging a defamation case. Strangely he has failed to do so in both cases. Unlike Zuma whose defamation lawyers have been busy indeed.

    Perhaps this is merely an indication of Mbeki’s personality and view that he is above this kind of legal wrangling and far to important to get involved in legal squabbles. But perhaps Hulley might have a point because in a defamation case the plaintiff might be called to testify and who knows what will happen under cross-examination.

    Maybe there are other reasons for criticising Mbeki

    Sep 28th, 2008
    by Pierre De Vos.
    30 comments

    Lizeka Mda, writing in City Press today, is not happy that Thabo Mbeki was fired. And what do you do when you are so angry because the ANC kicked out your beloved President? Well, blame white people, of course. That way you do not have to deal with the real issues, such as whether Mbeki was a good President or whether the ANC infighting have displayed all the hallmarks of vicious truimphalism.

    In doing this, Mda makes scurrilous personal allegations against Judge Chris Nicholson without providing a iota of proof, thus undermining respect for the judiciary.:

    Someone in the legal profession who used to work with Judge Chris Nicholson has one positive thing to say about the learned judge: he speaks flawless Zulu. Unfortunately, this makes Nicholson one of those who think that just because they can speak an African language, they know Africans more than they know themselves. According to this lawyer, the only people he remembers that Nicholson held in worse contempt than Africans generally were educated Africans.

    If I was Nicholson I would sue City Press and Mda for publishing such a statement. It really is deeply irresponsible to attack a judge personally and to allege that he is the worst kind of racist. Attack his decision by all means, analyse the judgment and tear it to shreds, but please do not take out your frustration with this kind of race bating. Then Mda continues:

    But going back to some white people’s relationship with Mbeki, there must be thousands of them who cracked open some champagne at the weekend. (Note: “Some” white people. If the cap fits, wear it. Otherwise don’t get your hackles up about generalisations.)

    This white person is on firm ground when dealing with Africans who are farmworkers or domestic workers. Now, let the African stay on in school beyond Standard Five and this white person is all at sea. These are the people who were very happy for almost 30 years to call Nelson Mandela a terrorist who deserved to die in jail.

    When he became president, however, the very same whites suddenly became his best friends. They got so close to him that there was no room in Mandela’s life for the black masses that had paid for the new South Africa. Mbeki smashed this cosy little set-up to smithereens. He not only was comfortable in his own skin, he had confidence in others like himself and gave them positions of responsibility in government, much to the chagrin of the all-knowing ones.

    I have no doubt that there are some white people in South Africa who conform to the stereotype painted by Mda above. But is this really the reason why so many people (white and black) have been critical of Mbeki? I would guess just as many people have been happy to see the back of Mbeki because of his disasterous questioning of the link between HIV and Aids and his support for a health minister who told South Africans that garlic, beetroot and olive oil may be just as effective in combatting the progression of HIV than antiretroviral drugs – thus encouraging hundreds of thousands of mostly poor black people to make decisions about their health that would kill them.

    Maybe some people are critical of Mbeki because he was not very good at admitting mistakes and facing reality. Who can forget the interview with the SABC last year when he said there was no problem with crime in South Africa and that it was not as if anyone would be attacked when they walked down the street outside the SABC. Only for a soapie star to be attacked outside the SABC the next week.

    Maybe some people have criticised Mbeki because he has sometimes acted in a way that did not appear confident and confortabale in his own skin, but paranoid and aloof. No, he has never met anyone who had died of Aids. No, crime is a figment of the white mind. No, there are no divisions in the ANC. No, he wants to have a third term.

    In as much as Mbeki’s education was his undoing, I would argue that the most influential critics and backstabbers have come from the Jacob Zuma camp inside the ANC. A class analysis might have helped Mda to acknowledge that the envy and anger at Mbeki among Mr Zuma’s supporters was at least partly based on his erudition and education.

    Blaming only some white people (although goodness me, some of them need to be blamed) and their racism for the demise of Mbeki makes for an easy and comforting analysis. But it is lazy and dangerous and, well, wrong. President Mbeki was kicked out by his own party dominated by black South Africans. Blaming white racism for this will not change this painful fact.

    It is sad that so many South Africans cannot confront reality and have to fall back on racial narratives to explain things they do not like and are upset about. It shows a world view still shackled to a colonialist mindset in which Africans do not have real agency and only white people have power and influence. Maybe Mda should read some Steve Biko again. It might just help to free her mind.

    Game on…

    Sep 26th, 2008
    by Pierre De Vos.
    10 comments

    Mr Jacob Zuma’s lawyers must be worried by the application of President Thabo Mbeki to the Constitutional Court as they have now indicated that they will opppose the application. I am in Berlin at the moment so do not have access to South African newspapers, but from the IOL report it seems that after intensive deliberations the Zuma lawyers decided to oppose.

    If they had thought there was no chance of this application succeeding and given the fact that Thabo Mbeki has already been ousted, one might have thought they would have allowed him to go on a frolick of his own without spending more energy on this application.

    But perhaps they worry that the highest court will slam the Nicholson judgment and therefore feel that for political reasons they have to oppose the application. This is a rather weird case as Zuma will now oppose an application to appeal a judgment by a person who was not a party to the original application by Zuma.

    The decision is an admission, it seems to me, that Zuma has a great interest in ensuring that the inferences made by Nicholson about political interference in his trial is not overturned. Perhaps this is because these inferences will assist Zuma’s lawyers if they want to bring an application for a permanent stay of prosecution.

    They might be worried that the Constitutional Court will find that these applications by Zuma have been frivolous and premature and that he was delaying his trial in order to avoid his day in Court. It will be interesting to read their papers and to see what they will say to support the findings of Nicholson that there might have been political interference in the charging of Zuma.

    Perhaps they know that this is not over yet and that the NPA still has a trick or two up its sleeve. Of course us tax payers are paying the legal fees for the application and for Mr Zuma’s response. Some might well wonder whether this is the best way to spend our money but for the two sides this seems to be a fight to the bitter end.

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