Constitutional Hill

Vusi Pikoli

Ginwala enquiry dead in the water?

Apr 25th, 2008
by Pierre De Vos.
9 comments

Just after pressing the “publish” button on the previous post on Vusi Pikoli, I received the insightful submission by the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) invited by the Ginwala Enquiry which seems to suggest Frene Ginwala will have a really hard time to get rid of Mr Pikoli if she is prepared to follow the law and the Constitution.

The submission makes the interesting point that while the NPA Act allows for the National Director to be removed on four different grounds, the terms of reference of the Ginwala Enquiry makes it clear that she could only recommend his removal on one of these grounds – namely whether Mr Pikoli was a “fit and proper person”.

It also makes clear that given the constitutional guarantee of independence, the NPA Head could not be removed because of a difference of opinion between him and the Minister of Justice about individual decisions to prosecute, not prosecute or strike plea bargains. The government case apparently relies heavily on the issue of plea bargains, arguing that Mr Pikoli had improperly struck plea bargains without taking into account the public interest or the national security interest of the Republic.

The SAIFAC submission makes clear that the power how to exercise the plea bargain power is vested in the National Director and not in the Minister or the President. Money Qoute:

The President may well disagree with a specific decision [to strike a plea bargain]. He may feel that a particular accused should have been prosecuted or that a different accused should not have been. But the President’s opinion is irrelevant because the discretion to prosecute, bargain or offer immunity vested entirely in the NPA. The only way the President’s concern might justify dismissing Mr Pikoli would be if it is supported by facts that indicate that Mr Pikoli, in deciding whom and on what terms to plea bargain, acted unconscientiously or without integrity and so rendered him no longer “fit and proper” to serve as NDPP.

This is an extremely difficult threshold to meet. If Ginwala agrees with this interpretation it would be difficult to see how – on the facts available to us now – Mr Pikoli could be dismissed. Of course, the government might have explosive evidence at its disposal and this might change the picture, but as things stands it is difficult to see how Pikoli does not win this case – either before Ginwala or on review before a court.

Which suggests another question: if there was such a flimsy legal basis for the suspension of Pikoli, why did the President nevertheless go ahead with the suspension? Was he badly advised by his lawyers? Was he trying to protect Jackie Selebi at any cost? Or – more intriguing – was he playing some Machiavellian pre-Polokwane game by suspending Pikoli so unpopular with the Zuma faction in an attempt to garner some support for his re-election bid?

Vusi Pikoli – when will it end?

Apr 25th, 2008
by Pierre De Vos.
2 comments

Vusi Pikoli, the National Director of Public Prosecutions was suspended in September last year. Now seven months later we still have no comprehensive official explanation for why the President suspended him and the Ginwala Commission of Inquiry set up to make a recommendation on whether he should be fired or not, still has had no hearings on the matter.

Mrs Ginwala has now stated that the parties to the commission can decide for themselves whether they want to release their submissions made to her to the public and Mr Pikoli’s lawyer has stated that his submissions will be made public.

I am not holding my breath that the government will be equally transparent and will rush to make public their submissions.

One would have thought that in an issue of such utmost importance the government would have tried to expedite the matter and that the Commission would long since have completed its work. Sadly this has not happened.

It seems to me untenable that this thing is dragging on and on and that there has been no communication from the government to enlighten us on why Mr Pikoli had to be suspended for seven months (and unlike the Police Commissioner who has actually been charged with a crime he has been suspended without receiving any pay).

It is imperative that all the submissions to the Ginwala Commission are released forthwith (and please do not come with excuses again that national security demands otherwise – the excuse of national security is about as convincing as those excuses by students that the computer or the dog ate their assignment).

When Mr Pikoli was suspended Mr Frank Chikane said this was done because there was a breakdown of the personal relationship between Justice Minister Brigitte Mabandla and National Director of Public Prosecutions. Only problem is that the NPA Act does not allow for the suspension or firing of the NPA Director for a breakdown of this nature.

In the absence of any other communication from the government it is difficult not to conclude that this has taken so long because the government had realsied that the President could not legally fire Mr Pikoli for a breakdown of trust and therefore had to fabricate come up with other reasons for his suspension.

Meanwhile the NPA is lurching from one crisis to another – what with the Scorpions being in the firing line and them having to fight legal battles on all fronts in their attempt to bring charges against Mr Jacob Zuma and the arms company who allegedly bribed him.

What is needed is for the government to make public all the submissions on this matter and if the government refuses for Ginwala to do so. Her rather battered credibility in this matter is at stake. Remember she was seen conferring with the Minister of Justice on the same flight several days before Mr Pikoli was suspended by the President and before she was appointed to investigate the matter.

We are waiting to see if the government will honour those celebrated values of accountability, responsiveness and openness set out in section 1 of the Constitution in this matter. So far they have not done so and have acted against the spirit of the Constitution.

It is only when we have all the information that we could make our our own minds on whether the President had acted in a scandalous way and had abused his power, or whether there were real reasons for the suspension of Mr Pikoli. The failure to take us into their confidence affronts the human dignity of all of South Africa’s citizens because it deprives us of the agency to decide for ourselves what to make of this tawdry affair.

But then again, our President has never really shown a deep insight into the needs for the respect of the human dignity of citizens and have often acted in a manner that suggest that we have no right to make up our own minds about anything because we are, after all, considered by our President to be either stupid or racist or often both.

Kenneth, how could you?

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

President Pinocchio

Jan 16th, 2008
by Pierre De Vos.
21 comments

President Thabo Mbeki and his advisers are having a difficult time explaining away an obvious wopper he has been peddling for a while now and repeated to reporters on Saturday when the President announced that Police Commissioner Jackie Selebi was stepping aside.

On Saturday President Mbeki said:

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

But in court papers Selebi filed last week, a letter written to President Mbeki by suspended National Director of Public Prosecutions Vusi Pikoli showed that Mbeki had, in May 2007, been informed about the allegations against Selebi.

Presidential advisor, Mojanku Gumbi, tried to explain away this obvious lie by saying that the letter of May 2007 merely contained allegations. Said Gumbi:

But throughout the process, while the prosecutors are investigating, we all wait until they tell has that they think they have a case to pursue against somebody and that is the only time when we say ‘OK, if you think you have a case to pursue, that is it, please pursue,’ and the president acts against the person.

There are at least two very obvious problems with this explanation. First, allegations against anyone of criminal wrongdoing remain allegations until such time as a court of law finds beyond reasonable doubt that the allegations are true. The question is how serious should allegations be taken before such a finding is made by a court of law. Surely they should be taken rather seriously if the person constitutionally entrusted with making decisions about criminal prosecutions take them very seriously?

In May 2007 the head of the National Prosecuting Authority thought these allegations were serious enough to ask that a warrant be issued to search Mr Selebi’s premises and to ask for the President’s help in getting co-operation from Mr Selebi – yet the President at the time claimed that he had no information about wrongdoing by Selebi.

This was an obvious lie as he did have this information, and from an extremely credible source – the head of the NPA – but because the information did not square with what he wanted to hear or needed to be true, he told the media that he did not have such information.

He was either telling bare faced lies, or he was in deep denial. Either way, him and his advisers cannot now say there was no evidence back then when there was enough evidence for the head of the NPA to want to act against the police chief.

Second, and more decisively, in Sepetmber 2007 the head of the NPA actually felt that the allegations were serious enough to ask for the issueing of a warrant of arrest for Mr Selebi and convinced a magistrate to issue such a warrant. Pikoli therefore thought in September 2007 that “there was a case to pursue” against Selebi, proceeded to institute such a case, a magistrate agreed there was sufficient evidence to issue such a warrant, and Pikoli informed the government accordingly.

Then the President suspended Pikoli and his spokesperson hinted that there was no case against Selebi and that it was part of a dark plot by sinister apartheid forces to discredit the Police and the government.

For the President and Ms Gumbi now to say that they could only act once it was clear the NPA thought it had “a case to pursue” and that this only happened on New Years eve, is thus such an obviously lie that it insults our intellegence to continue peddling it.

Surely convincing a magistrate to issue a warrant of arrest for the police chief (as Pikoli did in September 2007) shows rather decisively that the NPA thought it had  a “case to pursue” against the police commissioner and that it was in fact now pursueing that case? To pretend this never happened, is rather shocking in its boldness and arrogance.

The question is: why do the President and his advisers continue advancing this obvious lie? Do they just think we are all fools who will forget that a warrant was actually issued for Selebi’s arrest in September 2007? Are they so hubristic after ten years in power that they think they can change the facts by merely claiming them to be something different from what we all know them to be? Or are they incapable of admitting a mistake and are they therefore obliged to peddle these lies – all the time digging themselves deeper into a hole?

Whatever the answer is to this question, it is clear that President Mbeki and Ms Gumbi has no credibility left on this issue. Like Pinocchio, every time they talk about this issue their noses metaphorically will just grow longer and longer. The rest of us are by now embarrased by the long protruberances jotting from their faces – are they the only ones not capable of seeing this? 

Ginwala probe: more questions

Dec 11th, 2007
by Pierre De Vos.
No comments yet

It only warranted a small item in the Citizen newspaper. No mention of it in the Fishing Village rag, the Cape Times. Although ETV made a meal of it and called the Minister of Justices’ explanation extraordinary. I would have called it troubling and bizarre.

It all started when Freedom Front Plus MP, Willie Spies, recalled that he had seen Justice Minister Brigit Mabandla and ex-Speaker, Frene Ginwala in business class on the same plane on 20 September this year. Ginwala was of course appointed by President Thabo Mbeki to head the commission of inquiry into the fitness for office of the National Prosecuting Authority’s suspended head, Vusi Pikoli.

As it happens, Pikoli was suspsended on 24 September, five days after Mabandla and Ginwala was seen together on the plane. Spies posed a written parliamentary question about this and bizarrely Mabandla said she “did not recall” whether she and Ginwala had shared a South African Airways flight on September 20.

Spies also enquired whether Mabandla and Ginwala had attended any meetings together between September 19 and Pikoli’s suspension on September 24 this year but the Minister has so far declined to answer. GInwala’s office has also declined to comment on the matter.

As Spies remarked, a simple yes or no from either office would have sufficed to clear the issue. The fact that Mabandla now claims not to remember whether she was on the same plane and has declined to say whether she attended a meeting with Ginwala suggests either that Mabandla has been spending far too much time with the Minister of Health and is destined for an emergency liver transplant any day, or that she is lying through her teeth and that her memory lapse is a political rather than mental one.

It would, of course, be rather inconvenient if it would to transpire that the Minister of Justice – who is the official complainant in the Pikoli matter – and the head of the commission appointed to investigate whether Pikoli was fit to hold office – had a meeting shortly before the President had suspended Mr Pikoli. It would suggest that the Ginwala inquiry was a set-up with a pre-determined outcome and that the Minister, the President and Ginwala had acted in a disgraceful manner.

It would also further compromise not only the legitimacy of the inquiry but its legality. Even if Ginwala and Mabandla claimed to have attended a meeting to discuss flower arrangement or the form of the Springbok rugby team, noreasonable person would not feel a very strong apprehension that the head of the commission was biased against the head of the NPA.

Surely, if Ginwala is unwise enough to recommend to the President that Mr Pikoli should be removed from office, this would give Pikoli’s legal team another very strong line of attack against the legality of the process.

Politically, it also creates (or perhaps one should say further perpetuates) the perception that President Thabo Mbeki plays lip-service at obeying the Rule of Law and following the letter of the law, but that behind the scenes he is prepared to subvert the law to protect those close to him and to “fix” those who cross him.

Unless the protagonists come up with a better excuse that a memory lapse, most of us will expect the worst and will assume that once again Mbeki and his Minister is abusing their power to get rid of someone who did not follow the line. The fact that Ginwala is also implicated in this sorry mess seems sad, but after reading the part in Andrew Feinstein’s book in which he describes how the former Speaker subverted her office to protect the party and do President Mbeki’s bidding for him, it is not coming as a surprise.

NPA credibility? What credibility?

Nov 15th, 2007
by Pierre De Vos.
2 comments

It has become fashionable to berate the South African media for its myriad of faults – especially around its reporting of the so called succession debate and the chances of Mr. Jacob Zuma becoming President. Much of this criticism is of course self serving and usually emanate from one of the “camps” who feel aggrieved by the reporting.

I am on record as having a rather low opinion of the South African media myself and have pointed out that far too many journalists are credulous and lazy and fail to think matters through. They often jump on a bandwagon regardless of the facts. One example was when newspapers all reported that the charging of Jacob Zuma was made more likely by the Constitutional Court rejection of the appeal by Schabir Shaik against his fraud and corruption conviction.

No matter that legally the outcome of the Shaik case had very little bearing onwhether a Zuma prosecution will be succesful or no, the journalists were all used to report on the matter as either a blow or a boost to Mr. Zuma’s fortunes. As that was the master narrative, they could not understand that the decision had no impact on a possible Zuma prosecution.

It was therefore predictable that the decisions of the SCA last week in which Mr. Zuma’s appeals against the search and seizures of several of his properties was rejected, led to a spate of articles about how this would hasten Zuma’s demise. For once, the legal facts more or less fitted the master narrative, so as it happens it was not far off to state that the SCA decisions was a blow for Mr. Zuma.

What struck me about the reporting, though, was that very little was made about the broader legal picture within which these decisions were made. Most journalists and commentators speculated about whether Zuma would be charged before or after the Polokwane conference and based their arguments on whether charging Mr. Zuma now or later would embolden his bid for the Presidency or hamper it.

The discussion was based on the assumption that the NPA would also make a decision based on these considerations. Of course, if the NPA were fulfilling its constitutional mandate to act without fear favour or prejudice, such considerations should not and could not play any role in any decision on whether to charge Mr. Zuma or not.

It is a sad reflection on our democracy and the degree to which our Prosecuting Authority has become enmeshed in the politics of succession, that the lazy journalists had all just assumed that these criteria would be what drove a decision by the acting head of the NPA. (I am not saying Mokotedi Mpshe, that bright spark currently warming Vusi Pikoli’s chair would not take these succession factors into account – but I am saying he is constitutionally forbidden from doing so.)

By implication it is now taken for granted by almost all journalists that the pro-Zuma camp was correct to argue that the case against him has everything to do with the succesion race and very little to do with the fact that he took more than a million Rand from a convicted fraudster and then did special favours for this fraudster.

Maybe one should not be too harsh on the journalists and the commentators. The suspension of Vusi Pikoli, the head of the Prosecuting Authority (remember him?), by President Thabo Mbeki in circumstances that could only suggest political interference by the President in prosecuting decisions and the revelation by Andrew Feinstein that President Mbeki initially prevented the prosecution of Zuma alongside Shaik, has poisoned the atmosphere to such a degree that it is difficult to remember that the NPA is supposed to make individual prosecuting decisions not based on considerations around the politics of the succession.

Of course, decisions by the NPA to prosecute high powered people have political consequences and the NPA head should manage these consequences as best he can, but he should never make decisions based on whether such a decision is going to advance or inhibit the political ambitions of one person – even if (no especially if) that person is the President of the country.

The fact that most people have forgotten this basic principle and it is now common cause that the NPA will make a decision on whether to charge Zuma or not based on succession politics, demonstrate to what extent President Mbeki has has managed to destroy the credibility of one of our most important constitutional institutions.

All I can hope for is that Vusi Pikoli does not capitulate in the name of the party and that he fight the suspension and possible removal from office to the bitter end. That is the only way in which the NPA’s credibility could be restored in any way.

Meanwhile I am awaiting the decision of Mokotedi Mpshe on whether to charge Mr Zuma or not, confident that the decision will not be discussed with the President beforehand, will have nothing to do with the succession politics, and will have everything to do with legal considerations. I am, of course, also confident that Father Christmas lives in the North Pole and will bring me a new Mini Cooper for Christmas….

Constitution not ambiguous about the NPA

Oct 16th, 2007
by Pierre De Vos.
No comments yet

James Myburgh argues on the Politicsweb Blog that the problem with the present stand-off between Vusi Pikoli and the President can partly be blamed on the schizophrenic nature of the Constitution in this regard.

He correctly reminds us that the ANC government was very unhappy with the legislation adopted by the National Party government in 1992 which suddenly gave the Attorney Generals in each region wide independent powers to prosecute. The ANC felt that this independence would emasculate the new government and proposed the creation of one super national Prosecuting Authority with the power to intervene in prosecuting decisions in the regions.

Myburgh argues that this unhappiness of the ANC and its proposals – soon made into law – for a single prosecuting authority, was part of the power-hungry and Machiavellian move by the ANC to concentrate power in its own hands.

When the Constitution was negotiated in 1996, he argues, this power-grab was included in the Constitution. Thus the Constitution now states that the Minister of Justice has a final responsibility for the Prosecuting Authority and also gives the Minister a decisive say over the prosecuting policies that would have to be implemented by the National Director.

Myburgh seems to me to misjudge the nature of the constitutional compromise reached by the Constitutional Assembly while he overstates the ANC’s need for control at this juncture (1995). The Attorney Generals at the time had been appointed by the apartheid government and had not shown a keen interest in prosecuting the kinds of crimes that the constituents of the ANC were worried about: racially motivated crimes and the crimes perpetrated by agents of the apartheid state, for example.

The ANC therefore had a very good reason to want the government of the day to have a say in the prosecuting policy of the prosecuting authority. To allow the independent Attorney Generals to decide for themselves who to prosecute and who to investigate would really be to allow the continuation of apartheid prosecuting policies.

But what Myburgh does not acknowledge (ironically something also not acknowledged properly by Mervun Bennun in a defence of President Mbeki in Business Day) is that the Constitutional Assembly wisely limited the power of the politicians to interfere by clearly stating that the Prosecuting Authority had to act “without fear, favour or prejudice” and that legislation had to ensure that this is made possible in practice.

This section must be read in conjunction with section 1 of the Constitution which states that the Rule of Law is a founding value of the Constitution. The Rule of Law requires at the very least that all should be equal before the law and that friends of King Thabo should not be treated as if they were above the law. This must surely mean that the Constitution prohibits the executive from interfering in individual decisions on who to prosecute and who to investigate.

I would argue that far from being schizophrenic, the Constitution strikes a very good but delicate balance between the need to acknowledge on the one hand that the prosecution policy of a country always has a political dimension, while on the other hand recognising the need to safeguard the power of prosecuting authority to make individual decisions on who to prosecute and who not. The present crisis has arisen because the President is not respecting this wise constitutionally entrenched compromise.

The only ambiguity arises from the fact that the President and his spokespeople claim that the suspension of the National Director has nothing to do with an individual case and that the fact that a warrant of arrest was issued for Mr Jackie Selebi shortly before the Director’s suspension thus has nothing to do with the suspension of Vusi Pikoli. In other words, it arises from the lies emanating from the Presidency.

Only the most reactionary bootlickers and sycophants and other Presidential cheerleaders could possibly believe this Presidential version of events and only they can legitimately claim that the President has the Constitutional authority to do what he is busy doing now.

Lies, damn lies and Presidential woppers

Oct 12th, 2007
by Pierre De Vos.
1 comment

Several years ago newly appointed Mpumalanga premier, Ndaweni Mahlangu, got into hot water for saying he thought it was acceptable for politicians to lie. Of course Mahlangu – rumoured to have been selected for Premier of Mpumalanga because the Presidency had confused him with another man with a similar name – did not last long in office, perhaps because chastised by the media uproar about his (ironic!) honesty, he forgot to lie when required to do so by the party. But his benefactor, Thabo Mbeki, is still in office and hoping for a third term as President of the ANC and has learnt a thing or two from the has been politician.

This is perhaps why in his quest for a third term the President and his spokesperson, Themba Maseko, have both obviously taken Mr. Mahlangu’s advice to heart. How else to interpret the contradictory statements coming out of the Presidency. When first confronted with allegations that his police Chief was a corrupt man involved in all kinds of illegal activities he invited anyone with information to come forward with the evidence. But when Vusi Pikoli presented such evidence to a magistrate and obtained a warrant of arrest for the Police Chief, Mbeki suspended the National Director. Selebi on the other hand, remains in office.

It is therefore difficult not to conclude that the President was lying when he said he would act against the police chief if presented with the credible evidence. Although a magistrate was presented with credible enough evidence to allow her to issue an arrest warrant for the police chief, the President was not convinced and, bang, there goes Pikoli. Of course our President is a wise man and probably knows more about criminal law than the a magistrate that works with these issues every day – just as he probably knows more about the AIDS virus than all those doctors who won Nobel Prizes for their research on the topic.

Even more absurd – we are moving into Monty Python territory here – is the statement yesterday by Presidential spokesperson, Maseko, that the cabinet continues to have confidence in the police chief because no evidence exists to contradict his innocence. When pushed, he said that Mbeki had not seen the evidence on the basis of which a arrest warrant was issued and cannot act on mere “rumours” – hence Selebi’s suspension is out of the question.

Now this strikes me as being, how shal I put it, well, a whopping lie. How on earth could the President not have seen the evidence against Selebi. In terms of the NPA Act the Minister has the right to request the National Director to provide her with any information about any investigation and one would imagine that given the high profile nature of the case she was provided with such information in the Selebi case. Anyone believing that she had not requested such information and had not at least discussed it with the President, should have their heads read because they are living in cloud-coo cu land.

On the other hand, if what these people are telling us is true, they are obviously criminally negligent. Imagine: you are the President of a relatively important mid-seized developing country whose police chief is head of Interpol. Your Attorney General issues a warrant for the arrest of your police chief. So what do you do to find out whether you should not perhaps suspend the police chief? Well, nothing. You just sit around drinking whiskey and you don’t even think to ask the Minister of Justice to let you know what the bloody hell is going on and what evidence this whole arrest warrant is based on. If this is really what happend, Mbeki is not fit to run the Putsonderwater Jukskei club, let alone South Africa.

Clearly he is not asking about the evidence because he does not want to know about the evidence. The evidence does not suit him, so it must be ignored.

What upsets me so about this whole affair is that the people in the Presidency are either so arrogant or so stupid that they think we will believe them when they tell us such blatant lies. It reflects a shocking disregard for the people of South Africa and for the political system. What it really says is: we do not care what you think because what the people think does not matter to us because we know best in any case.

Where is Mr. Mahlangu now that we need him? At least he was honest enough to admit that lying was part of a politicians arsenal. In my ever increasing mood of ABM (Anyone-But-Mbeki), I might even support him if he emerges as a player in the ANC succession race.

Frene can we trust you?

Oct 6th, 2007
by Pierre De Vos.
1 comment

My take on the Vusi Pikoli crisis was published in Business Day yesterday. Am i the only one to see the ghost of the HIV/AIDS wars in this latest decision of the President that he knows better than the National Director whether a case exist against his Police Commissioner or not?

Goodbye Rule of Law, hallo national security?

Oct 4th, 2007
by Pierre De Vos.
1 comment

It suddenly struck me this morning that we might be living through another HIV/AIDS denialist moment. Has the President, in his all-knowing wisdom, decided that his Police Chief (who has admitted to a friendship with a confessed murderer “finish and klaar”) is being framed by the Dark Lord Sauron or other forces hell bent on destroying the National Democratic Revolution, the ANC and the masses of our people that it leads?

Once one is armed with such a belief, one would be honour bound to rectify the situation by firing the head of the National Prosecuting Authority and ensuring the the travesty of justice is not perpetuated.

This shock revelation came to me as I read the terms of reference for the Frene Ginwala enquiry. The terms of reference cover two broad areas: the fitness of Pikoli to hold office and the breakdown of the working relationship between him and Justice and Constitutional Development Minister Bridgette Mabandla. Accoring to government spokesperson Themba Maseko:

The terms question whether Pikoli, when deciding to prosecute offenders, sufficiently regarded “the nature and extent of the threats posed by organised crime to the national security of the republic”. They also question whether Pikoli, when he granted immunity from prosecution or entered into plea-bargain arrangements with people involved with organised crime, regarded “public interests and the national security interest”.

Now, we know that national security concerns is the last refuge of scoundrels. Does President Robert Mugabe not foam at the mouth about national security every time someone complains that they have no bread to eat? Did the apartheid government not suppress every embarrassing bit of information in the name of national security. Is George Bush and Dick Cheney not now allowing people to be tortured in the name of national security?

It is a very clever move to try and make the enquiry about national security, because it will allow Ginwala to have some or most of the enquiry behind closed doors, thus allowing a stitch-up without us knowing about it. And if we complain about a lack of information, a government spokesperson (because His Royal Highness will not deem to speak to us mere mortals about such a trivial matter) will whisper “national security” and shake his head at us for endangering the life of the nation.

The thing is: the terms of reference deal with legally irrelevant matters that should have no bearing on whether Adv. Pikoli may be fired or not. It is true that the National Prosecuting Authority is not independent and must consult with the Minister and must formulate prosecutorial policies in conjunction with the Minister.

However, this does not mean that the Minister (or the President) may interfere with the day to day running of the prosecuting authority or that either of them has to be consulted or must give approval for prosecutorial decisions – including decisions about who to plea bargain with and whether to prosecute the National Director.

In a democracy like ours based on a respect for the Rule of Law, no one should be considered to be above the law. This means the prosecuting authority is required to make decisions on who to investigate and who to prosecute based on the pre-announced policy guidelines agreed to with the government of the day, and not based on who that person is, what they stand for or who they know.

It is therefore not surprising that section 179(4) of the Constitution explicitly states that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. If reasonably possible, the relevant legislation must therefore be interpreted in such a way that it would protect the NPA from interference by the Minster or the President in any individual prosecutorial decision – including decisions to charge the Police Chief or to give indemnity to the police chiefs self-confessed murderer friends to testify against him.

The National Prosecuting Authority Act of 1998 strikes a fine balance between the need to uphold the Rule of Law, on the one hand, and the need to ensure that the NPA is political accountable, on the other. While confirming that the Minister of Justice has a duty to exercise final responsibility over the NPA, the Act envisages that this responsibility will be exercised by requiring the NPA to provide the Minister with information about the decisions taken by the National Director and the reason for such decisions.

The law makes clear that President Mbeki cannot fire Adv. Pikoli because of an “irretrievable breakdown of trust” between the Minister and the National Director. It seems to me there is also nothing in the act that allows the President to fire the National Director for making decisions that the President thinks is not good for national security. We are not paying the President to second-guess the decisions of the National Director and he has no power to second-guess the Director.

As we have seen before with the HIV/Aids debacle, the President is not infallible. No matter how certain he may be of his own view, he may well be wrong. It is exactly because Presidents often think they know everything and ought to be able to decide on everything that we have Constitutions with checks and balances that prevents Presidents from interfering in the way President Mbeki seems to want to interfere now.

If the President is allowed to get away with firing the National Director for vague and unspecified “national security” concerns, we are on our way to a Putin style “democracy” in which His Royal Highness has the final say in everything important – including who gets investigated and charged and who not. And then, well, good by Rule of Law and hallo to a national security state.

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