South Africa’s young constitutional democracy is now facing serious challenges that threaten to unmake a great beginning. In managing the contradictions within and between the ruling party and the state, and among state institutions, fidelity to the Constitution and the rule of law must be the starting point.
When the national commissioner of police approaches the court to resolve a dispute with the national prosecuting authority (NPA), he is exercising a constitutional right. What is troublesome is the remedy he seeks. To attempt to get the court to prevent a constitutionally mandated state agency from performing its obligation of investigating, charging and prosecuting a suspected criminal is an abuse of the judicial process.
Granting such an order would not only bring the administration of justice to a halt — as thousands of suspects would rush in to ask for similar treatment — but the courts would have crossed the line that separates executive and judicial competencies.
In our constitutional arrangement, the police and the prosecution services are equal and interdependent institutions. The police protect people and their property and investigate crime. After laying charges, they hand cases over to the prosecution, which has unfettered power to evaluate evidence and to decide whether to prosecute. This arrangement demands genuine cooperation between the two agencies.
It is therefore surprising that the police proceeded with the arrest, charging and detention of advocate Gerrie Nel, well aware that it is the prosecuting authority and not the police service that would steer the matter in court. The urge to undermine the pending charges and prosecution of police commissioner Jackie Selebi, and the need to score points, must have affected their sense of reason.
We need to remember why the directorate of special operations (DSO, also known as the “Scorpions”), the Special Investigations Unit and the Assets Forfeiture Unit were created within the NPA in the first place. The democratic order inherited the hated apartheid police apparatus, which was deeply intertwined with other security structures as an instrument of repression. To transform the police into an instrument of democratic law enforcement was going to take a considerable amount of time.
Revelations about Selebi’s behaviour and police interaction with elements of the organised criminal underworld demonstrate that there is still much left to transform.
The loud populist rumblings within the ANC, including the Polokwane resolution calling for integrating the DSO into the police service, are premature and perhaps ill-conceived. The Scorpions combine investigation and prosecution. To that extent there is overlap with the functions of the police. Reporting lines and political oversight are what need fixing. Merely adding prosecuting competencies to the police in its present state would be disastrous, at best.
It has become apparent that norms and principles of constitutional supremacy, the rule of law, separation of powers, the independence of the judiciary, the line between a ruling party and the government/state in a multiparty democracy as well as the presumption of innocence are not properly understood or appreciated by politicians across the board and senior state functionaries who regard themselves as politically connected.
The ANC leadership needs to reaffirm these principles and convince the public that they are committed to constitutionalism. All law and actions, including those of the party, must be within the letter and spirit of the Constitution. A one-party state mentality and ideological utterances that seem to suggest that government and state — especially the executive and Parliament — should become ANC rubber stamps, ought to be checked. The ruling party influences government policies and legislation, but cannot dictate conflation.
Just as Selebi must have his day in court, so too must Jacob Zuma. His election as ANC president should not in any way be used to intimidate the judiciary and the public. Some elements have even suggested that if Zuma is tried and found guilty there would be bloodshed.
Let justice take its course so that Zuma is either acquitted or convicted on some or all of the charges after a fair trial. The presumption of innocence should also be understood correctly. After all, those who committed heinous crimes under apartheid remain “innocent”, unless and until they are found guilty in courts of law. It is possible to engage in criminal wrong-doing and still not be found guilty in a court of law. Some cases are lost on mere technicalities.
Shadrack Gutto is director of the Centre for African Renaissance Studies at Unisa