Democracy has always, in its broadest definition, been based on the rule of law. Currently, this premise reels under the pressure of recent events in the South African judiciary.
The suspension of Vusi Pikoli, head of the National Prosecuting Authority (NPA) and the subsequent arrest of Gerrie Nel, head investigator of the Scorpions (Directorate of Special Operations or DSO) in Gauteng, are at the apex of these rumblings, but are not the only cause for concern in the legal arena.
Earlier this year, advocate George Bizos and Constitutional Court Judge Arthur Chaskalson issued a statement in which they stressed the importance of a judiciary that remains independent of government and political influences, as well as their concern about the judiciary.
The Pikoli drama lead to the appointment of the Ginwala Commission of Inquiry. Pikoli repeatedly informed his superiors of information regarding the apparent fraudulent behaviour of police chief Jackie Selebi. His actions led to his suspension on the grounds that “the relationship between him and the Justice Minister, Brigitte Mabandla, had broken down irretrievably”.
This was based on the statement — recently repudiated in the media by acting NPA chief Mokotedi Mpshe — that he had failed to keep her informed. It has since come to light that Pikoli had indeed briefed both Mabandla and President Thabo Mbeki several times before obtaining a warrant for the arrest of Selebi, which was cancelled before it was issued last year.
In February, Safety and Security Minister Charles Nqakula, seemingly without Mbeki’s prior knowledge, made a de facto statement in Parliament about dissolving the Scorpions.
In a statement, the Law Society of South Africa said: “When the national director of public prosecutions was suspended in September last year, we called for a speedy inquiry into the matter since the suspension of such a key figure could have a serious impact on the administration of justice.”
Nqakula remains adamant that the unit will be disbanded in its current form and incorporated into the police force. This, the minister says will make for a strong task force to fight corruption. The question is: How?
The Law Society said: “Whereas it is the prerogative of the ruling political party to resolve that the DSO should be incorporated into the SAPS, we are concerned that various Cabinet ministers have stated this to be a fait accompli.
“They and other members of Parliament have unfortunately created the impression that Parliament operates on the basis of the ruling party’s say-so as opposed to operating in the transparent, democratic and accountable manner provided for in the Constitution.
“This impression and the timing of the resolution creates the further dangerous impression that the call for the disbanding of the DSO is not based solely on what is best for the administration of justice and for the investigation into organised crime, which ought to be the only considerations in determining the future of the DSO,” the statement stated.
What is clear is that politics has invaded the judicial arena. It raises questions about the rule of law, the independence of the judiciary, and the future of our democracy itself.
If it were true that the Scorpions had political motives in their investigations, one could well ask why there are so many politicians whose actions make them targets. Had their hands been clean, the scorpion’s tail would not have swung their way.
It may serve us well to remember that we ascribe to Nepad and are subject to the Nepad Peer Review Mechanism that holds the South African government accountable.
Mabandla says the proposed reformations are based on a British model she studied in 2004, aimed at instituting a bridging council based on the model of United Kingdom National Criminal Justice Board.
Why we are to follow a British model when the same country came to take notes from our Scorpions unit and is fashioning their own high-level fraud unit on what is touted as a failure here?
Is this dichotomous tit-for-tat necessary? Or do we simply need a more accountable system that is immune to outside influences?