As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
One of the problems we have in this country is the view that a committed politician cannot be independent and cannot be impartial,” Ginwala said. The suggestion that politicians always put party interests before national ones was very “damaging” not only for the country but for the image of politicians.
Ginwala pointed out that she refused to resign from the ANC when she was appointed speaker. She challenged those demanding she did so to lay on the table any decision she took that was motivated by party political interests.
Those of us who remember her role in emasculating the arms deal investigation of Scopa just as it was gathering steam may find it difficult to keep a straight face when confronted by Ginwala’s challenge. Of course the irony is that Ms Ginwala has built up a reputation as quite an independent minded person, which was why she was fired as Speaker.
This could either be interpreted as showing that she will be fearless and will not hesitate to make a finding that would embarrass the leader of her party, or conversely that she would have learnt her lesson after being fired and that she would thus now toe the party line at all cost.
The point is that no matter what she does, there will remain a reasonable suspicion that she could not possibly be impartial, given her political commitments. This means the investigation is probably fatally flawed from the start as those who disagree with its findings will all point to her membership of the NSC to show why her conclusions were wrong and biased.
The relevant provision of the National Prosecuting Authority Act actually provides the President with wide powers to appoint anyone he deems fit to investigate this matter. He is therefore within his rights to appoint Ginwala. He could have appointed Ronald kevin Roberts if he had wanted to. (Imagine what a wonderful but macabre show that would have been!)
But the point is that it is imperative that the process is respected. The NDPP fulfills a vital role in our democracy and removing him from office should be a last step which should be undertaken in a way that would leave no reasonable suspicion that he was fired to protect corrupt friends and comrades. Frene Ginwala will find it difficult to convince any of us that she is the person to deliver such a credible investigation.