Vusi Pikoli, the NPA and the new President

I was quite startled and shocked by the statement made by ANC Secretary General, Gwede Mantashe on Saturday during the press conference where he announced that the ANC had “recalled” President Thabo Mbeki. It was as if Mr. Mantashe had not read or understood the Nicholson judgment or if he had, had decided not to respect the whole judgment. It is difficult not to conclude from his statements that the ANC NEC had decided that in order to protect Mr. Zuma, it would be necessary to break the law and to commit a crime for which one could be sent to jail for ten years. Was this really what the ANC NEC had in mind or was Mr. Mantashe just misguided?

Mantashe said the decision to fire President Mbeki was taken “as an effort to heal and unite the African National Congress” and that it was a political way to deal with the implications of Pietermaritzburg High Court Judge Chris Nicholson’s ruling that Mbeki may have been involved in a political conspiracy against Zuma. According to the Mail & Guardian he said:

“The biggest worry of the ANC had been the question of a reversal of the closure of the chapter that the Nicholson judgement seemed to have promised.” The National Prosecuting Authority’s decision to appeal the judgement had become a worry, said Mantashe. “If pursued it will continue to be a point of division for the ANC.”

So let me get this straight: because an appeal of the Nicholson judgment would perpetuate division in the ANC, the President had to be fired in order to stop the appeal. What are these people smoking? How exactly will they stop the appeal by the NPA? Surely the only way would be to order the acting or permanent Nation Director of Public Prosecutions (NDPP) to stop the appeal or be fired?

As the Nicholson judgment made very clear – relying on precedent of the Constitutional Court – the Constitution and the NPA Act guarantees the independence of the NPA and of the NDPP, who must make decisions about who to charge and which cases to appeal based on legal principles and the values of the Constitution and not, I repeat not, on the basis of what may or may not be in the best interest of the ANC.

If an appeal of the Nicholson judgment will perpetuate divisions within the ANC, tough luck. The ANC must deal with their divisions internally by, for example, ditching Jacob Zuma as its Presidential candidate. The ANC cannot deal with its divisions by interfering with our constitutional structures and it is thus legally prohibited from interfering with the decision of the NPA to appeal a judgment which many legal experts feel the NPA has a very strong chance of winning on appeal.

In as much as Mr. Mantashe is suggesting that by firing the President, the ANC would be in a position to stop the appeal by the NPA, he is suggesting that the new ANC President or a new Minister of Justice will be able to stop the NPA from doing its job, and will, in effect, be in the position to commit a crime for which he could be sent to jail for 10 years.

Unless of course he was referring to the fact that the new President will soon receive a report from Frene Ginwala in which she might or might not recommend the firing of Vusi Pikoli, who is still legally the NDPP. Although – as the Nicholson judgment made clear – Ms Ginwala will be legally and constitutionally misguided in making a finding that Vusi Pikoli is not a fit and proper person, she is a loyal member of the ANC. This means she might be tempted to ignore the law and cook the books to present the new ANC President with the opportunity to recommend the firing of Vusi Pikoli to the National Assembly who could then rubber stamp this abuse of power.

Once the National Assembly has then fired Mr Pikoli the new President could then appoint a loyal ANC cadre as NDPP – someone who will not fulfill its task without fear favour or prejudice as required by the Constitution – who will miraculously decide not to appeal the Nicholson judgment and not to charge Mr Zuma.

But of course, the Nicholson judgment did rather controversially find that a decisions not to prosecute anyone was reviewable in terms of the Promotion of Administrative Justice (PAJA) Act, so we can take that decision on review to show that it was not a rational decision as it was arbitrary, capricious or based on mala fides (bad faith). If the decision by a new NDPP is so blatantly in conflict with the Constitutional  and NPA Act requirement to act without fear, favour or prejudice, it might also be set aside as unconstitutional or in contraventions of the NPA Act.

So, if Gwede Mantashe and the ANC NEC think they can get this case to go away merely by firing the President, they are deluded. If this is really what Mr Mantashe meant, the new ANC guys are then also far more dangerous for our democracy than I had previously thought. Really, someone should whisper in their ear that (even) the ANC must abide by the Constitution and the law.

If they do not want to accept the law, they can change the law or the Constitution and we can then decide at the next election to throw them out of office. That is how democracy works.

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