National security, the last refuge of scoundrels?

At the heart of the Ginwala Commission of Enquiry Report and the decision by President Kgalema Motlanthe to recommend the removal from office of Vusi Pikoli, the National Director of Public Prosecutions, is a rather troubling interpretation of what is required to safeguard the constitutionally protected independence of the NPA.

The Report correctly points out that the Constitutional Court had held that s 179(4) of the Constitution, providing that national legislation must ensure that the prosecuting authority exercises its functions ‘without fear, favour or prejudice’, amounted to ‘a constitutional guarantee of independence’. It also points out that the Court had further noted that ‘any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts’ and concludes that “[a]ny attempt by the Minister of Justice to  influence prosecutorial discretion in individual cases would therefore be contrary to the Constitution.” But, the Report then states:

Sufficient attention has not been paid to the requirement of democratic accountability of the prosecuting authority. In focusing only on independence from political interference they have erred in conflating freedom from control with freedom from accountability. Further, scant attention has been paid to the nature, content and ambit of the “final responsibility” of the Minister, and even less to the relationship between this responsibility and the prosecutorial independence of the NDPP.

The Report then refers to chapter 3 of the Constitution, which deals with the principle of co-operative government between the national, provincial and local spheres of government and all organs of state within those spheres, and argues that the NDPP has an extraordinary onerous duty to co-operate with the President, the relevant Minister and other organs of state such as the South African Police Services.

If this interpretation is correct, it would place a very heavy burden on the NPA to co-operate with the executive when  deciding to issue warrants for the arrest of high ranking state officials or to prosecute them. In the case of Selebi, the Commission found its own interpretation of the Constitution and the NPA Act required the NPA boss not only to have informed the Minister and the President before requesting that a warrant of arrest be issued for the National Police Commissioner, but also to have acquiesced to a request by the President not to proceed with executing the arrest until such time as the President had taken the steps he deemed necessary for what he deemed to be in the interest of “national security”.

This seems like a controversial and rather novel interpretation of the Act and the Constitution as the  NPA Act does not explicitly require the NDPP to inform the Minister – let alone the President – of any actions to arrest anyone – unless he or she explicitly asks for such information.  It is not clear that the NPA’s constitutional independence, safeguarded in the Constitution, can be squared with this interpretation that in effect gives the President a veto power over decisions to issue arrest warrants against high placed government officials merely because the President cites issues of “national security”.

It is also not clear that chapter 3 of the Constitution applies to an independent body like the NPA as this chapter deals with relations between the three spheres of government. It is my opinion that the heavy reliance placed by the Ginwala Commission on chapter 3 of the Constitution completely misconstrues the nature of chapter 3 as well as the constitutional requirements for an independent NPA. Her interpretation of the NPA’s Constitution acknowledges the independence of the NPA on the one hand, then takes it away with the other.

Moreover, there is a good reason that “national security” is sometimes called the last refuge of scoundrels. It is such a vague concept that it would potentially give the President or the Minister extraordinary power to intervene in the decisions of the NDPP and  might well place the NDPP in the untenable position of always having to worry whether his decision might be construed by the politicians as having national security implications on their say-so.

Given the fact that Ginwala did not find that Pikoli’s actions did indeed hold any  threat for national security, the decision by the President to fire Pikoli seems like  setting a dangerous precedent as a future President will now be able to pressure the NDPP when he or she embarks on a course of action not favoured by the President by making vague assertions of national security being at stake.

It is also worrying that Ginwala expressed concern that Pikoli had not fully appreciated the sensitivities of the “political environment” in which the NPA needs to operate, and his responsibility to manage this environment. An appreciation of the “political environment” does not seem to sit easily with a duty to exercise one’s duties without fear, favour or prejudice.

Ginwala then continues:

Adv Pikoli needs to always recognise the final responsibility of the Minister and should have pro-actively made her aware of all matters of a sensitive nature that the NPA became aware of in the course of its functions, and fully and regularly briefed her on the progress of high profile investigations and prosecutions.

This obligation on the part of the NDPP  is not found in the Constitution or the NPA Act and was invented by Ginwala. It stems from her view that the Minister has to exercise final responsibility over the NPA and that this means more than set out in the Act. If a NDPP could be fired for not informing the Minister of something she or he though was important, the NDPP would be busy all day long writing reports to the Minister. This is not what the Act requires and, I would submit, it could not have been intended to require that as the Act must be read in the context of the Constitution that guarantees the independence of the NPA and Ginwala’s interpretation would make the Act unconstitutional.

But the report does contain rather devastating findings – although these findings are not followed to their logical conclusion. Thus Ginwala analises the letter signed by the then Minister of Justice a few days before Pikoli was suspended and states that:

the letter conveys a meaning that Adv Pikoli was to stop any plan to arrest and prosecute the National Commissioner of Police until the Minister was satisfied that there was sufficient information and evidence to do so. The Minister has since on affidavit said that it was not her intention to stop Adv Pikoli from discharging his duties or performing his functions as the NDPP. Assuming this is correct, the conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.

So, Ginwala in effect found that there was an illegal and criminal order to Pikoli to stop the prosecution of Selebi. This order was drafted by the DG and signed by the Minister. Yet she also finds that there was no reason to believe that the President suspended Pikoli because of the prosecution of Selebi. What I wonder is: who decided that this letter had to be written? Was the President or his advisers involved? Would Ginwala have been forced to come to a different conclusion if the question was posed differently, namely, whether the government wanted to fire Pikoli because he issued an arrest warrant for Selebi? These questions are not answered in the report. Could this be because the answers would not have favoured the man who appointed Ginwala and belonged to the same political party of which they are both disciplined members?

It is clear that the suspension happened shortly after Pikoli informed the Minister and the President that a warrant of arrest had been issued for Selebi. The letter was then written and shortly afterward Pikoli was suspended. It seems to stretch the bounds of credulity to argue – like Ginwala does by implication – that the one had nothing to do with the other. There clearly was a link. The only question is exactly what this link was.

So maybe Mbeki and his Minister did not interfere with the prosecution of Selebi. They (the Minister? the DG? Mbeki?) “just” interfered with the attempt to arrest Pikoli. This is still a criminal offense, but maybe not as serious as the first charge of trying to stop the prosecution altogether….

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