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Mbeki guilty of misinterpreting the law

Former president Thabo Mbeki’s latest attempt at historical revisionism, his February 8 Facebook letter, titled “Behind the narrative of the abuse of state power was a larger goal”, falls horribly short of the legal mark.

In revisiting – nearly a decade after the fact – his notorious decision to remove Vusi Pikoli from his office as national director of public prosecutions, Mbeki has reopened the proverbial can of worms.

He seeks to refute the widely held view that he unlawfully intervened with the functioning of the National Prosecuting Authority (NPA) by trying to prohibit or delay the arrest and prosecution of Jackie Selebi, then the commissioner of police. The essence of his argument, bolstered in part by selective reliance on the report by Frene Ginwala on the inquiry into the decision to remove Pikoli, is that, were the warrants for the search, seizure and arrest operations in respect of Selebi to be executed within a week of being obtained, as Pikoli intended, a “national security crisis” would have ensued.

Mbeki claims more time was needed to smooth things over between the Scorpions and the police, given their “poisoned relations”, to prevent what he anticipated would be a “shooting war” should the warrants have been executed that week. He cites the vague notion of “national security” repeatedly in defence of this position. Doing so, however, does not magically change the law.

The Pretoria high court will soon have to decide whether the decision to drop the nearly 800 charges against Zuma in March 2009 was lawful or not. Given the possibility of the state being required to make a decision about whether to (re)prosecute him, a brief refresher course in the relevant law seems appropriate.

The NPA is a hybrid constitutional beast. Section 179 of the Constitution provides for the establishment of a single national prosecuting authority headed by the national director of public prosecutions.

This section has its home in chapter 8 of the Constitution, on the courts and the administration of justice, and the office of the NPA indeed bears some resemblance to the judicial office in that, in the words of section 179(4), the prosecuting authority – like the judicial authority – must be able to exercise its functions “without fear, favour or prejudice”.

The National Prosecuting Authority Act 32 of 1998 was enacted pursuant to this section, and section 32 of the Act states in definitive terms that “a member of the prosecuting authority shall serve impartially”. It prohibits any organ of state or person from improperly interfering with, hindering or obstructing the prosecuting authority from carrying out the duties, powers and functions of the office.

In this way, although not explicitly mentioned by name, prosecutorial independence is entrenched – a fact that our courts have on numerous occasions emphasised. This independence is vital, given the role of the prosecuting authority in ensuring that the rule of law is upheld, due process is observed, and the rights of all parties involved in the criminal justice system are respected.

Without this independence, public confidence in the office – and indeed the administration of justice more broadly – would suffer a devastating blow. This independence is, however, not absolute, and it is for this reason that I loosely describe the NPA as a hybrid institution: although aspects of the office resemble that of the judicial office, the prosecuting authority is not entirely insulated from the executive realm.

Section 179(6) of the Constitution gives the minister of justice “final responsibility” over the prosecuting authority. Section 10 of the Act empowers the president to appoint the national director of public prosecutions, who must set prosecution policy guidelines with the minister’s concurrence, to ensure alignment with government policy.

Not too much can be made of this notion of ministerial responsibility, however, for ultimately the NPA must operate free from executive (and other) interference – even if it comes from the office of the country’s commander-in-chief and even if he or she cries “national security”.

It is for this reason that the Act grants the national director of public prosecutions security of tenure and empowers the president to remove he or she only in four circumscribed instances: “misconduct”, “continued ill-health”, “incapacity to carry out his or her duties of office efficiently” or where it can reasonably be shown that he or she “is no longer a fit and proper person to hold the office”.

The president or justice minister cannot simply fire the national director of public prosecutions because of a disagreement with his or her prosecutorial decisions – one of the statutorily prescribed criteria must be shown to be present and, in Pikoli’s case, as Ginwala (thankfully) ultimately concluded, “government … failed to prove … that Pikoli is no longer fit and proper to hold office”.

National security – an amorphous term not even mentioned in the Act – does not, and ought not, to provide government with a panacea. It remains unclear to me all these years down the line how warrants, duly issued by a judicial officer in the face of what must have been compelling evidence, could be deemed to be what Mbeki terms “provocative”, in that their execution would plunge “the country into a very serious national security crisis”.

On the contrary, a failure to exercise the warrants timeously might have had that effect, for it is surely in the interests of national security that investigations and prosecutions are carried out expediently and in accordance with the law.

The law vests the ultimate decision-making discretion when it comes to individual prosecutions in the national director of public prosecutions as head of the NPA. The Act certainly does not require him or her to run these decisions, however politically sensitive they may be, past the president or the minister (save where he or she requests such information), which, given what might be around the corner in respect of Zuma, must surely be a good thing.

Pikoli informed Mbeki of the Selebi matter in advance as a matter of courtesy. He was not legally obliged to do so, and such an interpretation cannot be squared with the constitutional imperative to ensure that the prosecuting authority exercise its functions without fear, favour or prejudice. How might the NPA meaningfully do so if hindered by the concern that a decision might have spillover effects when it comes to that unruly horse, national security?

Additionally, from a pragmatic perspective, such a position seems untenable: the national director would be hamstrung by frequently having to check in with the president before seeking to obtain and act on warrants, institute investigations, and so forth. The absurdity of such a scenario is surely self-evident, and, if it is not, the law makes it so: the notion of final ministerial responsibility over the prosecuting authority, as fleshed out in section 33 of the Act, does not entail a general presidential or ministerial veto over prosecutorial decisions.

The Act does not empower the president or the minister to demand grace periods for the execution of warrants against high-ranking officials and, as I have emphasised, it does not make mention of national security – which, given the need to ensure prosecutorial independence, can surely not be a fall-back executive trump card.

Mbeki’s version of history does not change the legal position: on the law, he did overreach. Perhaps, as the old adage goes, he would have been wise to let sleeping dogs lie.

Lauren Kohn is a lecturer in constitutional and administrative law at the University of Cape Town and an attorney of the high court.

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Lauren Kohn
Lauren Kohn works from Cape Town, SA. Attorney & Senior Lecturer, Department of Public Law, UCT, Director & Founder: (B.Bus.Sci LLB LLM, all with Distinction). Lauren Kohn has over 49 followers on Twitter.

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