What happens to Pikoli?

Submitted by Loammi Wolf

With the resignation of president Thabo Mbeki from office, the following questions arise: What is going to happen to the suspended National Director of Public Prosecutions, advocate Vusi Pikoli? Has Dr Frene Ginwala completed her report? Was it already handed over to the former president? What are the legal consequences of this unfinished business with regard to the constitutional status of the NPA?

The former president and minister of justice espoused the opinion that the NPA functioned like an extended arm of the executive — pretty much like in a Westminster system. This is partly the result of the mould into which the NPA has been cast by the NPA Act, which is not entirely in line with the new Constitution.

Westminster-style executive control over prosecutors was already abolished in 1992. The post-1992 position was endorsed by the new Constitution, but it changed in respect of the constitutional status of the NPA. In terms of the law of state organisation in a constitutional state, the prosecutors, together with judges, constitute the third branch of state power. They function as two separate organs of the judicature in terms of chapter 8.

The “final responsibility” accorded to the minister of justice over the NPA therefore refers to administrative oversight of the criminal justice system to ensure the smooth running of the courts. The minister of justice has no legal oversight over the NPA. Direct interference into criminal investigations as well as decisions to institute criminal proceedings are categorically proscribed by the Constitution.

The act of suspending the NDPP from office must meet the legal norms set for the legality of executive action and proportionality of administrative action. Since the NPA is a state organ within the third branch of state power that enforces the law, the NDPP is on par with the minister of justice and not subordinated to his or her political control. Consequently, an “irretrievable breakdown in the relationship” between former minister of justice Bridgette Mabandla and the suspended head of the NPA, Pikoli, is completely irrelevant from a constitutional perspective.

One should also bear in mind that such an extraordinary step is a matter of last resort and warranted only under very unusual circumstances. Mbeki twice suspended an NDPP within four years, which clearly indicates that the suspension procedure foreseen by the NPA Act allows the president to hold the NDPP hostage to executive agendas.

A comparison with Germany proves that it is not normal. Germany has a similar system of state organisation but this happened only once in more than 60 years. That was in 1993 when Wolfgang Gramms, a member of the notorious RAF, was shot dead during an attempt to arrest him. There was a shoot-out and Gramms killed a policeman, but was subsequently fatally wounded as well. It was suspected that the dead policeman’s partner killed Gramms in an act of revenge.

The controversy that ensued led to the interior minister (responsible for policing) resigning from office and the justice minister firing Alexander von Stahl, the head of public prosecutions who was responsible for the operation. In Germany, such operations are always prosecution-led to ensure that the proper criminal procedure is followed. A court of law subsequently found that the exact course of events could not be reconstructed with any definite clarity and that no blame could be attributed to Von Stahl. Many calls for the rehabilitation of Von Stahl followed.

If one compares that with the suspension procedure of the NDPP, it is obvious that part of the problem is that there are no proper control mechanisms to prevent an abuse of power. The NDPP can be suspended by the president and even left in the precarious position of having no financial security in the interim. The direct suspension procedure by Parliament is even worse, because a mere debate suffices to invoke such a drastic step. This seriously undermines the equilibrium of power between the three branches of state power, which is at the core of a constitutional state.

If the president provisionally suspends an NDPP, there must be an inquiry into his fitness to hold office. It should be noted that the type of inquiry is not even specified by the statute. Only four instances have been foreseen for such a removal of an NDPP from office: misconduct; continued ill-health; incapacity to carry out his or her duties efficiently; or no longer being a fit and proper person to hold office.

It is common cause, though, that it was the pending arrest warrant and charges against the police National Commissioner, Jackie Selebi, which gave rise to the suspension of Pikoli. This became more than clear from various letters by the president and the minister of justice, which were presented to the Ginwala commission of inquiry. In other words, none of the four statutorily mandated causes for a provisional suspension from office was present.

In fact, the motives for suspending Pikoli (that is, the pending arrest and prosecution of Selebi) have been expressly prohibited. Section 32(1)(b) of the NPA Act stipulates that “no organ of state” may “improperly interfere with, hinder or obstruct the prosecuting authority” in carrying out its functions. This means that the act of suspending Pikoli from office lacked legality in the first place and was null and void right from the start.

The executive nevertheless tried to legitimise the suspension by arguing that Pikoli was no longer a fit and proper person. They advanced a number of reasons to substantiate this, for example disrespect to the president and the minister, the manner in which post-TRC litigation was handled, and that the NDPP did not take national security into consideration. However, none of these reasons is relevant for they are not among the four grounds for suspension that have been statutorily authorised.

The appointment of a commission of inquiry does not rectify this deficit. It merely serves the purpose of giving a gloss of legality to a procedure that allows the executive to get away with improper behaviour, which was not mandated by law in the first place. It also has the fatal consequence that the president does not have to take responsibility for an abuse of power.

Further deficits of this procedure are highlighted by the fact that the report of such a commission of inquiry does not have to be published or tabled in Parliament. The suspended NDPP does not even have the right to get a copy of the report. These are grave inroads with regard to administrative justice and democratic transparency.

The very choice of a commission of inquiry to investigate the grounds for the suspension is problematic from a constitutional perspective for a different reason. Commissions of inquiry used to function as a curb of executive power. In a Westminster system, the prerogative to appoint a commission of inquiry vested in the state president as nominal head of state, and was a control mechanism against an abuse of power by the executive. The state president could therefore step in by appointing a commission of inquiry in the public interest.

Unfortunately, this prerogative power was passed on to the executive president by the 1983 Constitution as well as the 1996 Constitution — with fatal consequences. It has often served the purpose of giving a gloss of legality to executive action that lacks legality or constitutes an abuse of power. For this reason a judicial commission of inquiry into the arms deal, which certainly would have been in the public interest, will probably never materialise because of the way in which this useful institution has been conceptualised by the new Constitution. There ought to be a critical reassessment about who should appoint such commissions of inquiry because it can serve as a useful check on executive power.

Another reason why the section regulating suspension of the NDPP is unsatisfactory is that it accords powers to a commission of inquiry that boils down to legal supervision of advocates. The standard set that the NDPP must be a “fit and proper person” is the same as that for advocates. This is the domain of professional watchdog institutions in the legal fraternity, and as in the case of complaints about impropriety of judges, this ought to be dealt with by the Judicial Service Commission. This is a body of properly trained lawyers and judges that is able to execute such legal supervision and to determine whether the NDPP is fit to perform his or her duties properly in terms of the law of precedent and other legal rules and regulating the matter.

This, broadly, is the legal position Pikoli faces in the aftermath of the resignation of Mbeki. Nobody knows whether Ginwala has completed her report or whether it has been handed over to the Presidency. He is out on a limb at this stage, although his suspension lacked legality in the first place.

Even if Pikoli should be reinstituted in office by the new president, the constitutional status of the NPA ought to be clarified by the Constitutional Court for the future. The constitutionality of a number of provisions of the NPA Act ought to be scrutinised as well because a fair number of them are counter-productive to secure the equilibrium of state power between the different branches of state power.

The current state of affairs is most disagreeable for the reputation of the NPA and its ability to perform their duties properly.

Dr Loammi Wolf runs the initiative Democracy for Peace, and is a constitutional law specialist who wrote extensively on the theory underpinning a constitutional state