/ 10 May 2007

Mbeki ‘above courts’

President Thabo Mbeki has submitted, in a potentially far-reaching argument for separation of powers, that courts are not equipped to review his 2006 decision to dismiss National Intelligence Agency boss Billy Masetlha.

If they did, Mbeki has argued in the Constitutional Court, national security would be threatened.

‘To scrutinise too closely the [president’s] reasons for deciding to terminate the services of [Masetlha] puts at risk the interests of national security and risks causing political fall-out domestically and internationally, should the [president] be forced to disclose sensitive information to justify his decision,” Mbeki says in countering Masetlha’s application to have his suspension and dismissal overturned.

‘However, more importantly, the — political appropriateness of certain conduct of the [president] in his official capacity are matters which courts are ill-equipped to consider.”

Mbeki’s argument is contained in his heads of argument, which together with Masetlha’s court docu- ments were mysteriously pulled from public record on Tuesday.

The Mail & Guardian gained access to the documents on Monday, a day before the office of the registrar at the Constitutional Court was instructed to pull the documents because some of them were marked top secret.

On Thursday, the Independent Group brought an application for the documents to be made public, and Chief Justice Pius Langa ruled that they be placed back in the public domain by noon on Monday.

The heads of argument, in the M&G‘s possession, do not appear to contain sensitive information and it is unclear why they were marked top secret.

In his heads of argument, Mbeki bases his case on the theory of judicial deference and international precedent. He contends that judicial review of executive decisions has to respect the constitutionally enshrined separation of powers. The courts may lack the wisdom to rule on decisions of other branches of government, particularly ‘highly sensitive, policy-laden and politically significant decisions” such as the axing of Masetlha.

Mbeki relies heavily on a 2004 case in which Constitutional Court Judge Kate O’Regan said that in showing ‘deference”, a court ‘should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government — the extent to which a court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker”.

According to Mbeki, ‘the [president’s] choice of head of the NIA is governed by his own judgment — [he] accordingly has a broad discretion to appoint [and by proxy dismiss] the candidate of his choice”. He asks that the courts ‘adopt a light degree of scrutiny” when considering whether he ‘acted in bad faith, misconstrued or exceeded his powers or acted irrationally” in Masetlha’s dismissal.

The Constitutional Court hearing on Thursday followed Masetlha’s abortive Pretoria High Court challenge last year to his October 2005 suspension and the early March termination of his contract as NIA director general.

The high court upheld Mbeki’s decision under section 209 of the Constitution, which empowers him to appoint the heads of the intelligence services. This implicitly gave him the right to terminate such appointments, the court found.

Masetlha was suspended over the NIA’s botched spying operation — involving businessman Saki Macozoma — and fired after the report of the Inspector General of Intelligence, Zolile Ngcakani, on the ‘hoax email” affair implicated Masetlha as a central player.

Mbeki cited the breakdown in trust between the two men as the reason for dismissing him.

In his constitutional court application, Masetlha argued that the president’s power to appoint should not be interpreted as the power to dismiss, and that his use of section 209 as the source of his power was an afterthought. In his letter terminating Masetlha’s contract, the president referred only to the Public Service Act. Masetlha said that if Mbeki still wished to dismiss him, he should use appropriate laws, such as contract law.