Ginwala inquiry probably illegal

If I were the legal adviser to suspended National Director of Public Prosecutions Vusi Pikoli — and if my client had very deep pockets — I would immediately have lodged an application in the Constitutional Court challenging the legality of the inquiry now conducted by Frene Ginwala on behalf of President Thabo Mbeki.

It seems to me that the more we learn about the suspension by Mbeki of Pikoli, the more obvious it becomes that the president has suspended Pikoli and wishes to fire him because Pikoli had issued a warrant of arrest for police chief Jackie Selebi. The inquiry by Ginwala that is supposed to provide the fig leaf of legal justification for this abuse of power is thus based on a completely illegal premise and, in my opinion, has no legal basis.

This is a very serious claim to make. If correct, it would suggest that our president has behaved in a way that failed to respect the Constitution and the law which he has sworn to uphold in order to achieve an impermissible or even illegal objective. It would constitute a “constitutional crisis” of the first order because it would suggest that the president believes that some constitutional and other legal rules do not apply to him as long as he can cite “national security” concerns.

Exhibit one in my argument is the terms of reference issued by Mbeki when appointing Ginwala to investigate Pikoli. These terms of reference seem, at best, legally irrelevant and, at worst, amounting to an unconstitutional interference with the obligation of the National Prosecuting Authority (NPA) to exercise its functions “without fear, favour or prejudice”.

The president instructed Ginwala to determine whether Pikoli is fit to hold the office of national director by looking at:

Whether Pikoli, when exercising his discretion to prosecute offenders, had sufficient regard to the nature and extent of the threat posed by organised crime to the national security of the republic.

Whether Pikoli, in taking decisions to grant immunity from prosecution to or enter into plea-bargaining arrangements with persons who are allegedly involved in illegal activities that constitute organised crime, took due regard to the public interest and the national security interests of the republic.

Whether the relationship between the national director and the minister of justice has irretrievably broken down.

Now, as I have pointed out before, the NPA Act allows the president to suspend and ultimately remove the national director from office only for objectively determinable reasons, including for misconduct or on account that he is no longer a fit and proper person. At the same time the Act — giving effect to the Constitution — safeguards the power of the national director to make prosecutorial decisions without fear, favour or prejudice.

That is why the minister is not given any power by the Act to interfere with individual decisions of the NPA or its director, and why she is prohibited from stopping any investigations or prosecutions. If the minister is not happy with the way the national director exercises his discretion or applies the Act or the prosecution policy to which she had agreed, she can have the law changed by Parliament or have the policy reviewed.

By directing Ginwala to look into the exercising of Pikoli’s discretion and the taking of decisions, the president is really allowing the inquiry to focus on the individual decisions of the national director — something that is not allowed by the Constitution or the legislation.

More seriously, such an inquiry is sending a signal that decisions of the national director — even if those decisions fall within his legal powers and do not constitute an abuse of power or misconduct — can be reviewed by the executive and can lead to the firing of the national director in the event of the minister or the president not being happy with those decisions.

This is untenable: it would be unconstitutional and, yes, illegal, and constitute a gross abuse of power by the president. It sends a signal that the president thinks that he or his minister has a veto of the national director’s prosecutorial decisions when they can conjure up some vague notion that the “national interest” or “national security” is at stake. But the legislation does not allow such interference for any reason — including reasons of national security.

The legislation does not require the minister and the national director to get along either. Whether their relationship has broken down is therefore also legally irrelevant for purposes of his removal. It would be untenable for the president to be allowed to fire the national director every time his minister is unable to get along with the director because the director is refusing to follow the illegal and unconstitutional instructions of the minister on individual prosecutorial decisions.

No, I am sorry to say, but the minister and the president are way out of line. The best we can hope for is that they have been given bad legal advice. (Reading the judgement of the Constitutional Court in the Billy Masetlha case; it is clear that the president has spectacularly bad lawyers advising him — they seem to be working for Fawlty Towers, not the Presidency.)

Let us hope that Vusi Pikoli vigorously challenges the legality of the inquiry and that he is prepared to take the matter to the Constitutional Court — if necessary. Unlike in the case of the firing of national intelligence chief Billy Masetlha, I suspect the Constitutional Court will have serious problems with the legal basis for the firing of Pikoli.