How Ginwala blew it

Thabo Mbeki’s choice of Frene Ginwala to lead the inquiry on Vusi Pikoli was always likely to deliver two things: a determination to protect Mbeki and a display of executive deference.

Ginwala demonstrated both qualities early in Mbeki’s career as president when, as parliamentary speaker, she backed his spurious decision to block the Heath unit’s involvement in the arms deal probe and supported the executive’s push to subvert proper oversight of the deal.

Her report, released this week, found no substance in the reasons government gave for Pikoli’s suspension. But instead of using this to interrogate the real reasons, she looked for others that could have justified it.

Her critique of Pikoli’s supposed insensitivity to ‘national security” and ‘the political environment” is so overblown as to undermine her call for his reinstatement.

In reality she gave President Kgalema Motlanthe the grounds he needed to dispatch a powerful public servant whose independence threatened ongoing headaches for the executive.

Motlanthe cynically took the gap—but it was Ginwala’s determination to protect Mbeki that opened it for him.

Pikoli’s central allegation was that he was suspended to torpedo his intended actions against police National Commissioner Jackie Selebi. He argued that the government’s main reason—the supposed breakdown in his relationship with Justice Minister Brigitte Mabandla—was a smokescreen.

The facts elicited by the inquiry support him.
Ginwala found the relationship did not break down; that none of the government’s reasons justified Pikoli’s suspension; and that justice Director General Menzi Simelane was forced to scratch around to ‘try to make something stick on advocate Pikoli”.

She found no reason to question Pikoli’s bona fides, ascribing to him the highest degree of integrity. The obvious corollary would have been to probe the real motivations of Mbeki, Mabandla and Simelane.

In fact Ginwala blames Simelane for everything. Mabandla emerges as barely capable, misled by him at every turn.

Despite this evidence of Mabandla’s incompetence, she condemns Pikoli’s reluctance to treat the minister as a virtual equal in running the National Prosecuting Authority (NPA). And she weasels out of scrutinising Mbeki’s role.

Indeed, she engages in the most superficial way with Pikoli’s assertion that he was suspended to stop arrest and search warrants for Selebi being carried out.

Ironically, the sequence of events confirmed by the inquiry supports Pikoli’s suspicions.

Here’s the evidence:

  • Simelane is unlikely to have misled Mbeki as Ginwala confirms the president had 10 briefings from Pikoli on the Selebi investigation. Mabandla was also briefed and never objected—until Mbeki realised search and arrest procedures were imminent and wrote to her about it.

  • On receipt of Mbeki’s letter, Mabandla wrote to Pikoli instructing him ‘not [to] pursue the route that you have taken steps to pursue” until she satisfied herself there was ‘sufficient” evidence for Selebi’s arrest. The reasonable inference is that Mabandla’s attempt to interfere—which Ginwala rightly condemns—was at Mbeki’s instigation.

  • To exonerate Mbeki, Ginwala relies on a bland letter from the president to Mabandla instructing her to ‘obtain the necessary information from [Pikoli] regarding the intended arrest —” and noting: ‘This would enable me to take such informed decisions as may be necessary with regard to the national commissioner.”

    This ignores the fact that Mbeki’s letter is a second request for something he had already received.

    Earlier, after Pikoli told Mbeki of the arrest and search warrants, he was asked to prepare a written report ‘to enable the president to apply his mind as to what he needed to do about Selebi”. Pikoli presented this.

  • Indeed, it was Pikoli’s refusal to let the minister second-guess his decision to prosecute Selebi that prompted her demand for his resignation. When he refused, the president also asked him to resign. When Pikoli refused again, the president signed a letter of suspension that again underscored the centrality of the Selebi matter.

    That letter refers to ‘information that has come to the attention of the president that advocate Pikoli entertained the granting of immunity to members of organised crime syndicates”.

    This could have referred only to agreements being negotiated with accomplice witnesses, such as Glenn Agliotti, for testimony against Selebi.

  • Ginwala’s main evidence for rejecting Pikoli’s account of his suspension was the fact the prosecution of Selebi eventually proceeded. As Pikoli’s lawyers point out, Selebi was arrested only after Mbeki’s defeat at Polokwane and after an independent panel agreed he should be prosecuted.
    Vital searches of Selebi’s home and office at police headquarters were never carried out, while documents requested from police have not been handed over.

  • Ginwala, in effect, finds that the reason for Pikoli’s suspension was the Selebi matter, but spins it.

    Pikoli disclosed that Mbeki initially asked for two weeks’ grace before executing the warrants, to create ‘an enabling environment” for action against Selebi.

    Pikoli thought this was too long to sit on the warrants, but said he could wait a week. He was suspended a day before the week was up and Ginwala speculates his suspension was motivated ‘by the need to avert the possible threat to national security that may have resulted if the warrants were executed before an enabling environment was created”.

    But Ginwala ignores the most damning evidence of all: Mbeki did nothing after Pikoli’s suspension to create an ‘enabling environment”. Selebi was not suspended nor did the president instruct the police to hand over the relevant files.

    Only after January 1, when the NPA reconfirmed its determination to prosecute Selebi, did Mbeki call an emergency meeting of the National Security Council to ‘prepare the way”. And only after Selebi lost his January 10 court bid to stop his arrest did the president finally place him on ‘special leave”.

    In the end Ginwala’s bid to exonerate Mbeki on the charge of interference required the introduction of a bogus justification for his actions—the old bogey of ‘threats to national security”.

    Now Motlanthe has raised the same excuse to justify shafting Pikoli. Beware—this bogey will be back to haunt us all.

    Mabandla could face anti-meddling action
    Mabandla, now minister of public enterprises, could face the full force of the law for allegedly meddling in the prosecution of police boss Jackie Selebi, writes Adriaan Basson.

    It will now be up to the police to decide whether there is a prima facie case of interference in the work of the NPA against her, after Independent Democrats leader Patricia de Lille lodged a complaint at the Cape Town central police station this week.

    This follows Motlanthe’s release of the Ginwala inquiry report into Pikoli’s fitness to hold office.

    Although Ginwala found Pikoli to be a fit and proper person to lead the NPA, Motlanthe announced he would ask Parliament to fire Pikoli on the strength of Ginwala’s concerns about his regard for national security.

    The report is scathing about Simelane’s role in Pikoli’s suspension. Ginwala specifically criticises him for his role in drafting a letter to Pikoli that instructed him to halt the investigation and prosecution of Selebi. The letter was signed by Mabandla.

    The letter was central to Pikoli’s claim that Mbeki suspended him to frustrate the Selebi probe.

    Simelane admitted during cross-examination that he had prepared the document.

    The Ginwala report quotes Mabandla saying in affidavit that ‘it was not her intention to stop advocate Pikoli from discharging his duties or performing his functions as national director of public prosecutions. Assuming this is correct, the conduct of [Simelane] in drafting the document in the manner it reads was reckless, to say the least.”

    Ginwala says Simelane should have been ‘acutely” aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice.

    ‘The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the [NPA] Act.”

    It was this section of the report that prompted De Lille to lay charges against Mabandla. Under section 32(1)(b) of the NPA Act it is an offence to interfere with, hinder or obstruct the prosecuting authority or any member of it in the performance of their functions.

    Conviction carries an unlimited fine, imprisonment for up to 10 years or both.

    De Lille says she decided to charge Mabandla because she signed the letter and was ultimately responsible for its content.

    ‘Many of the leaders in the ANC and government think that they are above the law ... MPs are here to make the law, not break it.”

    Earlier this week Justice Minister Enver Surty referred the Ginwala report to the Public Service Commission to make recommendations on possible steps against Simelane.

    NPA spokesperson Tlali Tlali said no docket had yet reached the prosecuting authorities so that it could decide whether to prosecute.

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