Constitutional Hill

President Pinocchio

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? 

  • khosi

    Perrie,

    I think that if you want to see a lie, no matter what, you will create one.

  • Pierre De Vos

    Khosi, I see you do not try to dispute my analysis or argue with the basic premise on which I base my statement. This is perhaps because its logic is indisputable and cannot be faulted. I understand that it might be uncomfortable and painful to have to admit that one’s President is telling big lies, but denial is not really going to get us anywhere, is it? Maybe one could turn your statement on its head: ïf you do not want to see a lie, no matter what, you will not see a lie despite all the evidence to the contrary.

  • Anonymous

    A twisted truth is nothing but a lie. Furthermore, while JZ was fired as Deputy President of the country (not the ANC), it strikes a discordant note that the Police Chief is merely placed on ‘long [paid] leave’ while his inferiors are usually suspended without pay until the case has been finalized. If Selebi is convicted, and I’m sure there is a big posibility of that happening, and sentenced to imprisonment (what a scandal that would be!), he would have ]been paid for all the time he defended himself – or would the government pay for his defence? Thabo Mbeki: Shame on you!!

  • http://women.amagama.com Katlego

    Yeah set the record straight Pierre, Preach brother preach!
    Its so refreshing to read such as simple and straightforward analysis about an incident in which a person we have trusted with power and respect, betrays it so blatantly and unashamedly it causes incredulity to the audience. I think this is the reflex on which Khosi acted. Part of the experience we are given of Mbeki, and other leaders in power (with notable exceptions like Dick Cheney, or Paul Wolfowitz) is that they are admirable, strategic, and trustworthy leaders. Who do not act on greed, on favoritism or any other contemptible cause. Well, that’s a load of kak! High politics is a high stakes game, there’s a lot of pain, subterfuge, pressure, compromise, horse trading and all and that smiles of political leaders to media photo opportunities, with hand shakes and flashing camera lights, and bold and promising speeches are but the worst representations of the real workings of the machine. At the end it is us the electors who suffer if we don’t speak up. That’s why the Doctors for Life decision by Ngcobo J at the Constitutional Court is a boon for advancing government accountability.

    Preach Pierre, Preach!

  • Anonymous

    I forgot who, but one of the early American Presidents said something like: “Give a man power and, shortly, I will show you his true character. Thabo Mbeki, unlike Madiba, eventually succumbed to the temptations that power wields – he even tried to be elected for a further term (as ANC President, a position from which he could manipulate the election of a new President for RSA) so as to enjoy the eophoria of being in power a little longer. It sounds almost like Bob Mugabe of Zim! Hell no, somewhere an end had to be brought to all this, but I’m not sure JZ is the correct (even political) choice. Perhaps Kgalema Mothlantle is the right one. We will have to wait and see. I agree with Katlego (and disagree with Khosi), continue prophesying Prof! When will they ever learn?

  • khosi

    Pierre,

    On this blog – http://constitutionallyspeaking.co.za/?p=442 – I asked the following:-

    “Prof, to say Mbeki suspended Pikoli for getting the arrest want against Selebi is wrong. If that was the case why did he replace him with someone who was going to take from where Pikoli left of in the Selebi case.”

    Please respond to this question and then I will unpack your the lack of thought in what you are ‘prophesying ‘

  • Pierre De Vos

    Khosi, Pikoli was suspended three days after the warrant of arrest was issued for Mr Selebi. Then the President and his spokesperson gave contradictory reasons for the suspension and when the commission of enquiry was announced its terms of reference seemed not to be related to any legal reason to fire Pikoli. In these circumstances it is very difficult not to link the two issues. Why the President then appointed Mpshe when Mpshe could “not be trusted” is not within my knowledge. I would speculate though that he thought that Mr Mpshe was a weak man who could be manipulated, but as a previous justice minister once said about judges “the trouble with these people are that once appointed they think they are there on merit and they start thinking for themselves”. I would suggest it was a miscalculation on the part of the President – he was overconfident (just like with the Zuma election) and thought he could control events which he could, in the end, not do. Especially now that he is defeated by Zuma and is in effect yesterday’s man he has lost hhis power and Mr Mpshe has gained some backbone.

  • khosi

    Again more speculation and no clear fact from the good Prof.

    Pierre, I would like to suggest that if you feel so strongly that you are in fact correct that the President did indeed betray the public’s trust, ask the Public Protector to probe this very important issue.

    We cannot have a liar for a President, neither can we, at our whim, go on unjustly calling him a liar.

  • khosi

    But before you go running to the Public Protector, i suggest you look for the definition of the word ‘allegation’. Also be in peace that this word really does equate to ‘wrong doing’. The president asked for to be supplied with information on ‘wrong doing’ and not allegations on ‘wrong doing’.

    Very important wordplay, Prof.

  • Anonymous

    Nonsense Khosi – it is the job of the NPA to make ‘allegations’ when they charge people, and to present the available evidence to the court. It is the court who then has to decide whether the allegations were proven (in a criminal case – proof beyond reasonable doubt is required) not for the NPA (or the President, or Frene Ginwala, or whomever). For the President to ask for ‘information on wrong doing’ instead of ‘allegations on wrong doing’ (your own word-play) would mean that he has equated himself to a court of some kind, and to decide, on the available evidence, on behalf of the NPA and the judiciary, whether the case should in the end go to a proper court. Clearly, that amounts to interference! Whether the Public Protector is independent and competent enough to investigate the President, without fear, favour or prejudice (like Ngcuka, Pikoli, Mpshe etc should be doing in respect of criminal prosecutions), well, thats another question altogether, isn’t it?

  • khosi

    Anonymous,

    You always seem to make sense. Pity you hide you name. But this time I am afraid that you misread my wordplay.

    I am not saying that Mbeki is equal to a court, God help us all, if thats the case. What I am saying is that an allegation of wrong doing must be tested and proven before it becomes information of wrong doing. But between the period when an allegation is made and when its validity is pronounced on by the courts, the president needs to make a decision on the vericity of that allegation. This decision only concerns what he is constitutionally responsible for. Nobody said the president has the power to decide what goes to court or not, where did you get that?

    I believe that it is this period that the president has cleverly navigated. Because nothing compels him to suspend or fire on mere allegation, he waited for the NPA to tell him that they are ready to take the allegations to court. They went on and got two warrants, one arrest and one search. Now a search warrant means that the NPA was still searching for information and may not have been ready to prosecute the Commisioner. Remember what happened with JZ and the PMB high court. I do not think that the president had the apetite for taking this risk – knowing fully well what happened in PMB. And this gave him reason to continue treating the allegations as just allegations.

    The NPA then comes back and tells the President that they are ready to prosecute and then the Commisioner is put on leave because the veracity of the allegation has been heightened to be worth of time in court.

    Now again I say, if anyone strongly believes that the president acted in betrayal of our trust, please go to the Public Protector. Stop speculating about that office’s independence and prove your theories.

  • Clara

    “Then the President and his spokesperson gave contradictory reaons for [Pikoli's] suspension.”

    Vusi Pikoli was suspended because of “an irretrievable breakdown between [him and] the Minister of Justice and Constitutional Development” according to Government Communication and Information System’s spokesperson Themba Maseko. The suspension was in terms of Section 12 (6) (a) of the National Prosecution Act 32 of 1998. President Mbeki was silent on the matter.

  • Clara

    “The NPA then comes back and tells the President that they are ready to prosecute and then the Commissioner is put on leave because the veracity of the allegation has been heightened to be worth of time in court.”

    Exactly. I buy that. As for the “allegation vs. information word-play” nonsense: nobody has to appear in court on mere allegation; there has to first be some kind of evidence.

  • khosi

    Clara

    I am glad you agree. But the you say

    “nonsense: nobody has to appear in court on mere allegation; there has to first be some kind of evidence.”

    do not call it nonsense and agree with me in the same sentence. My question is why should the president act on a mere allegation, untested evidence and/or evidence that is not ready to be tabled in court?

  • Clara

    Khosi:

    There would be no “word-play” if one had said ‘allegations vs. evidence’. “Information” is too vague for me. As for the President, he might have said something about the initial allegations, but he didn’t want to. That’s his prerogative.

  • Ntanjana Akhona

    Good people I get the issue now is about President`s omission to act while he was under the duty to accordingly,I would like to agree with Prof because the NPA had enough information to base its allegations against Selebi on that time (and still has) but our President decided to put freandship first by doing so he contravene certain provisions in presidency ,I`m not sure however I still need to research his obligations in presidency but problably he must face DC if it is proven that he deliberately defend Selebi.

    I do not want to call him a liar even if he is,because he has a right to dignity himself.Lastly Piere don`t include the fact that he contested in the ANC conference in Limpopo -its out to say the least ,its not because he wanted to stay in power but its because he listens to the people who want him and respects that .Allegations Khosi is the information that is not yet proven by court ,it is not needed to be proved by NPA at all but it need to carry much weight.

  • Anonymous

    Obviously the NPA would have to have witness statements and other ‘evidence’ available on the docket before deciding to prosecute a person – and not simply ‘information of wrongdoing’ – but then the ‘allegations’ based on the available evidence must be tested by a court. It is not for the NPA (or Mbeki, or whomever) to second-gues the NPA’s decision to prosecute on available evidence. The only way in which the truth or not of the available evidence could be tested is by revealing it before a court of law, where it will be subjected to cross-examination. Here the NPA obtained a warrant of arrest against Selebi, which in tems of the Criminal Procedure Act may only be applied for by a prosecutor if there is already evidence (based on a sworn affidavit) on the docket to provide at least a reasonable suspicion that a specific crime has been committed by the person to be arrested and, invariably, that evidence would have to be strong enough to base a criminal charge on, lest the suspect will have to be released within 48 hours after that. Pikoli, a seasoned lawyer, would obviously not have applied for such a warrant against such a high profile person unless there were such evidence available on his docket. Furthermore, there is nothing wrong with obtainng a ‘search warrant’ together with a warrant of arrest – if someone is suspected of having commited on crime of fraud (or one of corruption), and one suspects tha this is not an isolated incident, a search warrant might reveal more evidence to press more charges (or more cogent evidence that would make the available evidence more damning. No wonder Mojapelo DJP did not want to withdraw the search warrant at the request of Mpshe pending his ‘review’ of the matter. In fact, Mpshe did not even have to have the arrest warant cancelled before doing the review, he cold merely have kept it safe until later and then, if necessary, have it cancelled, or executed.
    PS – hiding my name is necessary due to my position

  • khosi

    Well again – if anybody feels strongly that the president betray the publics trust in the handling of the Selebi issue, please approach the public protector.

  • Pierre De Vos

    Khosi, unfortunately the Public Protector used to be a member of the National Assembly for the ANC and in high profile political cases he has not always shown the kind of independence one would have expected from his office. It would therefore be a waste of time to report the President to the Public Protector as there is no chance that he would ever make a finding against the President. But see the front page story in this morning’s Mail & Guardian about how the President tried to protect Selebi.

  • khosi

    “It would therefore be a waste of time to report the President to the Public Protector as there is no chance that he would ever make a finding against the President.”

    I think you have a problem with your spell checker, what you mean is: – ‘I, Pierre de Vos, have been creating lies that I cannot prove about president Mbeki. In this way I really am no different from the Zuma supporters who claim that the president has been manipulating the NPA. This is the very same NPA that the president, according to the M&G, had no power in getting it to stop the Selebi charge’.

    Absolutely crazy!!!

    David Bullard was kind on us, actually we live in the twilight zone.

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