18 Oct 2007: ISS Today: Pikoli Suspension Undermines South African Criminal Justice System

18 October 2007: Pikoli Suspension Undermines South African Criminal Justice System

 

On 25 September 2007, the President of the Republic of South Africa, Mr. Thabo Mbeki, suspended the National Director of Public Prosecutions (NDPP), Mr. Vusi Pikoli.  At the time, the President did not disclose the reasons for the suspension of the NDPP save to mention that the relationship between the NDPP and the Minister of Justice and Constitutional Development had broken down.  The suspension, and the lack of full disclosure as to the reasons for the suspension, has given rise to a great deal of speculation.  Given the political volatility that currently exists in the country, much of that speculation has inferred political motives on the part of the president.

 

In a later statement a government spokesperson claimed that the breakdown in relations between the NDPP and the Minister of Justice was occasioned by the NDPP not accounting adequately to the Minister, who is the executive head of the National Prosecuting Authority, including that body’s Directorate of Special Operations (the Scorpions). This explanation satisfied few observers.  Suspicion was further fuelled when it later transpired that the Scorpions had sought and obtained warrants of arrest and of search and seizure against the National Commissioner of Police, Mr. Jackie Selebi.  Critics of the president’s course of action drew a connection between the criminal investigation and the suspension of the NDPP. Some even suggested that the President must have acted against Mr. Pikoli in defence of the National Commissioner.

 

Upon his return from a state visit abroad, the president announced that an inquiry, to be headed by Dr. Frene Ginwala, the former Speaker of Parliament, would look into whether the NDPP was fit to hold office. While the institution of the inquiry was generally accepted as the right step, questions where raised about the appropriateness of the enquiry being overseen by Dr. Ginwala, a member of the National Executive Committee of the African National Congress.

 

The NDPP has a legal duty to be accountable to the Minister of Justice and Constitutional Development.  The Constitution and the National Prosecuting Authority Act do not detail the form that such accounting should take. Logically, the Minister and the NDPP must have agreed on a policy that guides such accounting on the affairs of the NPA. The policy should have covered such issues as which matters were to be reported to the Minister and how often such reporting should take place.

 

The Minister is an elected political figure who holds her position by virtue of the President’s prerogative. She is a member of the executive and is accountable to the President and to the nation for the department and its sub-structures. The President, as head of the executive, has a responsibility to act in terms of the Constitution when things are not working between a minister and one of her subordinates. His failure to take appropriate and constitutionally permissible steps would expose the country to a worse crisis than we are currently experiencing. The step the President took is not final but is subject to parliamentary review as sanctioned by the Constitution and the law.

 

Understandably the President, on appointment of the inquiry to investigate the issues involving the NDPP, could not make public all his reasons for doing so. Doing so could influence the outcome of the investigation that is to follow, compromise the integrity of the inquiry, and interfere with due process.

 

Thus until the Ginwala Commission completes its assignment, it is unlikely that the public will get any further detail regarding the reasons for the suspension of the NDPP.  There is also a very real possibility that the commission may be closed to the public.  Whatever happens, an impression has been created that the suspension of the NDPP is linked to the criminal investigation of the National Commissioner. It is hard to believe otherwise. Why else would the acting NDPP start his work by canceling a warrant for the arrest of the National Commissioner? And why is there a need to review the case against the National Commissioner?

 

The President is in a difficult position. On the one hand, he obviously has information that the public does not have access to and cannot disclose it now that he has set a process in motion.  On the other hand he is confronted by an increasingly skeptical public that is demanding answers. 

 

The tragedy is that this saga negatively affects people’s confidence in the criminal justice system. Serious allegations have been made against the National Commissioner, and a magistrate was satisfied that there was enough evidence to authorise a warrant for the National Commissioner’s arrest.  A judge was presented with enough information to authorise a search and seizure warrant against the National Commissioner.  Instead of those warrants being executed, the NDPP was suspended and the acting NDPP reviewed the case against the National Commissioner. How can the citizens of South Africa be expected to trust the criminal justice system in the light of these events?

 

Jake Moloi, Senior Researcher: Crime and Justice Programme, ISS Tshwane (Pretoria)