Now that President Jacob Zuma has announced his intention to institute a commission of inquiry into whether National Prosecuting Authority (NPA) head Mxolisi Nxasana is fit to hold office, interest has shifted to who could head the inquiry.
There is no law prescribing what form such a commission should take or who should head it. But the Democratic Alliance (DA) will ask Zuma to appoint a retired judge – someone without run-ins with political authorities or ties to a political organisation – to ensure impartiality.
Mabine Seabe, spokesperson for DA parliamentary leader Mmusi Maimane, said the party would wait for details around the nature of the inquiry.
“The very reason we are where we are is due to political meddling,” explained Seabe.
The presidency announced on Saturday that Zuma had decided to institute an inquiry into Nxasana but few details were given.
Presidency spokesperson Mac Maharaj said these details, including whether Nxasana would be suspended during the inquiry, would be made in due course.
No existing framework
Due to the lack of an existing legal framework to guide the intended inquiry, it calls to mind the 2007 inquiry around then-NPA head Vusi Pikoli.
The DA asked former National Assembly speaker Frene Ginwala to recuse herself from chairing the Pikoli inquiry and threatened legal action if she did not.
Ginwala was appointed by then-president Thabo Mbeki to investigate whether Pikoli was fit to hold office. Mbeki suspended him a month before he appointed the inquiry.
At the time, the DA was concerned about Ginwala’s membership to the ANC and her close relationship with Mbeki.
“She has, therefore, a clear conflict of interest in the matter,” DA leader Helen Zille said at the time.
“The fact that you are a long-standing member of the national executive committee of the ANC and close to president Mbeki, who is a key player in the events around advocate Pikoli’s suspension, objectively disqualify you from fulfilling the functions required in the inquiry,” Zille wrote to Ginwala.
The party initially threatened to take Ginwala to court if she refused to recuse herself, saying “it would be legally untenable for you to chair the proposed inquiry”.
The DA later learned that it could not pursue its threat of legal action because in appointing Ginwala, Mbeki had acted in terms of executive, and not administrative, power.
“His actions, therefore, fall outside the scope of the Promotion of Administrative Justice Act. Thus, we are precluded from challenging her appointment in a court of law,” admitted Zille.
But she reiterated the DA’s belief that the former National Assembly speaker was an inappropriate choice to head the inquiry into Pikoli’s fitness to hold office, saying a respected judge should fill the role.
She said Ginwala found herself in an untenable position. Although she might be unbiased in her deliberations, there existed a reasonable perception of an unavoidable bias on her part, Zille said.
The Ginwala-led commission found in Pikoli’s favour and recommended that he be reinstated into the position. He was dismissed nonetheless.
Process is critical
The executive secretary of the Council for the Advancement of the South African Constitution (CASAC), Lawson Naidoo, said on Sunday he was not opposed to the appointment of a politician to head the inquiry into Nxasana’s fitness to hold office.
He told the Mail & Guardian that while the person who headed the inquiry was important, the process in which the inquiry was conducted was more crucial.
Naidoo worked with Ginwala as the commission’s deputy secretary.
“There is no framework or guidelines. We were the first inquiry of its kind and as the people who worked on it, the first thing we decided on was to be transparent,” he said.