This is no time for panic, or for manic depression of the sort that Xolela Mangcu displayed in a column last weekend. This is politics, not rugby — so the national state of mind should be governed by clear-headed questions, not by the hyperbole of triumph and disaster. We must keep a sense of perspective.
Admittedly, this has not been easy in recent days. The presidency made an almighty mess of the announcement of Vusi Pikoli’s suspension. If ever one needed an archetype to prove the point about how secrecy causes harm and encourages rumour mongering, this was it.
Instead of clarifying matters as soon as possible, Mbeki allowed petty obfuscation — which is too often his way — to muddy the waters further. And to think that the presidency held an emergency meeting on the evening of Pikoli’s suspension to decide how “best” to handle the PR! One might ask how it could have been any worse.
Whatever her precise terms of reference, it is this wrong that Frene Ginwala must now right with her commission of inquiry. Above all, she needs to restore public confidence in the process. It’s a tough ask. Can she do it?
My first reaction to her appointment was that she was ideal. Tough, shrewd, experienced and, most importantly, ANC to the core — my instinct was that the thing that most concerned the critics of her appointment could prove to be her greatest asset.
Ginwala has found the last two years of petty division disquieting, at times even disillusioning, as the factional power struggles have eclipsed some of the ANC’s longest-held values and principles. She, as much as any die-hard ANC member, would be eager to see a more even keel restored. Here was a gilt-edged opportunity to help do so.
But this was before the terms of reference emerged, which place great emphasis on questions of “national security”. For its legitimacy, the inquiry must be held in the open. But the national security stuff will make this hard.
Second, it will make her inquiry far more complex because defining the “national interest” is like trying to nail melktert to the ceiling. Although the relevant statute in this case permits the president to appoint whatever commission he sees fit, ordinarily an inquiry concerning national security would be headed by a judge.
The other concern about her suitability is more parochial. Ginwala is a member of the ANC’s national executive committee and is, according to the City Press report on Sunday, on the Mbeki lobby group’s slate to be returned to the NEC.
But let us not prejudge the issue. Ginwala will know that the eye of history is on her. The way she approaches her delicate task will have long-term significance. Getting the rules of the game right will be crucial. The process the inquiry adopts will help to determine the way in which the outcome is seen.
One hopes, therefore, that the inquiry enjoins highly qualified constitutional law opinion, that there is a “counsel for the inquiry” to test the evidence (although the question of whether there is oral evidence or whether it will be an inquiry “on the papers” is one of the many unresolved questions).
Last week the Constitutional Court handed down its judgement in the Billy Masetlha matter. Pikoli’s case has a similar resonance; it is essentially set up as a disciplinary inquiry, albeit one that is now set against the dramatic arc of national security and the war that rages between the senior leadership of the police and the national prosecuting authority.
In the Masetlha judgement Justice Albie Sachs offered a separate judgement in which, whether by coincidence or not, he pointed out that the head of the NIA was one of three positions, including the national director of public prosecutions and the police commissioner, where the relationship between the president and the special appointee should at all times be suffused with a constitutional dimension.
Strip away the extraneous stuff and it boils down to this: the national director of public prosecutions is investigating the police commissioner; that has caused a “war” between the two agencies. If the executive is interfering with the investigation to the point of blocking it for political reasons then Pikoli’s suspension is a symptom that South Africa has a crisis on its hands.
It seems to me that only by taking Sachs’s advice, and by carefully applying constitutional principles, will Ginwala be able to help prevent the otherwise inevitable lurch towards a full-blown constitutional crisis.