Wednesday, November 21, 2007


Most of the Constitutionally Speaking archive can be accessed here or on the new site. When in doubt, try this site first, hopefully it will not disappear.

Saturday, October 06, 2007

constitutionally speaking is moving

Some readers who use Internet Explorer have been having difficulty to read this Blog. I have therefore decided to move the Blog to a non-Microsoft platform. It can be found at Please bookmark the new address. Please also let me know if any of you experience tehcnical difficulties with the new site.

Friday, October 05, 2007

On a sad and shameful decision by the JSC

It comes as no surprise that the JSC has decided not to institute proceedings that could lead to the impeachment of Judge President John Hlophe (pictured). I am on record as suggesting that Judge Hlophe had skillfully used the genuine concerns about transformation and racism on the bench and in the profession to save his own skin. That does not make the decision of the JSC less shameful or shocking, though.

In a country like South Africa, where race inevitably and comprehensively infects every aspect of public life, it was probably inevitable that Judge Hlophe would in effect be given a second chance by the (black) majority of members of the JSC. I heard rumours that ANC Parliamentarians had already indicated to the JSC that even if an impeachment recommendation is made, they would vote against it, so this might also have influence the JSC to make the spineless and disgraceful decision it did.

On one level, the decision by the JSC reminds us of how fractured and messed up our society still is. Facing an obviously correct but emotionally difficult decision that would have seen the downfall of a man who had worked himself up from gardener to Judge President, the majority of members of the JSC could not do the right thing, perhaps because this would have seemed like an endorsement of racist stereotypes.

The irony is, of course, that the decision will fuel, not undermine, the racist stereotypes that some whites have of black lawyers and judges. Those who are professional whiners and love to find fault with everything in the new South Africa will use this decision to crow about how "everything is going to the dogs". What do the rest of us tell them this morning? How do we defend this decision by the JSC - except to appeal nakedly and barrenly to race?

The dishonesty of the JSC decision is clear for all to see. Their claim that there was not sufficient evidence to proceed with a public inquiry regarding the main count of receiving payment from Oasis without consent from the minister, is, in fact, laughable. The statement issued by the JSC is also contradictory because the commission expressed dissatisfaction over some of the explanations it had received from Hlophe.

Lawyers have a wonderful way with words when they do not want to make the truth sound too damaging and this last sentence is a textbook example of that lawyerly skill. Dissatisfaction with some of the explanations offered by Judge Hlophe can be translated as: The Judge President had lied to the JSC but let's just forget about it because we do not have a smoking gun that will force us to act.

The JSC had to say something to this effect to try and salvage some credibility for themselves. The unpalatable fact is that only those who believe that Father Christmas really delivers presents on a sleigh on Christmas eve could possibly have believed that Justice Hlophe had received permission from Dullah Omar to do work for Oasis. No member of the JSC (or Judge Hlophe for that matter) could possibly provide a cogent explanation for the fact that by the time Hlophe started doing "work" for Oasis, Minister Omar had not been the Minister of Justice for eighteen months.

Please people, you are insulting our intelligence and hurting our democracy and respect for the judiciary. You are placing the interest of one rich, influential, well-connected - admittedly previously discriminated against - man (Judge Hlophe), above the interests of the 45 million South African's who wish to live in a country that adheres to the Rule of Law under an independent and respected judiciary. It is a deeply short-sighted decision and ever member of the JSC who supported Judge Hlophe should hang their heads in shame.

As my mother would have said: "Sies, julle behoort julle te skaam!"

Thursday, October 04, 2007

Goodbye Rule of Law, hallo national security?

It suddenly struck me this morning that we might be living through another HIV/AIDS denialist moment. Has the President, in his all-knowing wisdom, decided that his Police Chief (who has admitted to a friendship with a confessed murderer “finish and klaar”) is being framed by the Dark Lord Sauron or other forces hell bent on destroying the National Democratic Revolution, the ANC and the masses of our people that it leads?

Once one is armed with such a belief, one would be honour bound to rectify the situation by firing the head of the National Prosecuting Authority and ensuring the the travesty of justice is not perpetuated.

This shock revelation came to me as I read the terms of reference for the Frene Ginwala enquiry. The terms of reference cover two broad areas: the fitness of Pikoli to hold office and the breakdown of the working relationship between him and Justice and Constitutional Development Minister Bridgette Mabandla. Accoring to government spokesperson Themba Maseko:

The terms question whether Pikoli, when deciding to prosecute offenders, sufficiently regarded "the nature and extent of the threats posed by organised crime to the national security of the republic". They also question whether Pikoli, when he granted immunity from prosecution or entered into plea-bargain arrangements with people involved with organised crime, regarded "public interests and the national security interest".

Now, we know that national security concerns is the last refuge of scoundrels. Does President Robert Mugabe not foam at the mouth about national security every time someone complains that they have no bread to eat? Did the apartheid government not suppress every embarrassing bit of information in the name of national security. Is George Bush and Dick Cheney not now allowing people to be tortured in the name of national security?

It is a very clever move to try and make the enquiry about national security, because it will allow Ginwala to have some or most of the enquiry behind closed doors, thus allowing a stitch-up without us knowing about it. And if we complain about a lack of information, a government spokesperson (because His Royal Highness will not deem to speak to us mere mortals about such a trivial matter) will whisper “national security” and shake his head at us for endangering the life of the nation.

The thing is: the terms of reference deal with legally irrelevant matters that should have no bearing on whether Adv. Pikoli may be fired or not. It is true that the National Prosecuting Authority is not independent and must consult with the Minister and must formulate prosecutorial policies in conjunction with the Minister.

However, this does not mean that the Minister (or the President) may interfere with the day to day running of the prosecuting authority or that either of them has to be consulted or must give approval for prosecutorial decisions – including decisions about who to plea bargain with and whether to prosecute the National Director.

In a democracy like ours based on a respect for the Rule of Law, no one should be considered to be above the law. This means the prosecuting authority is required to make decisions on who to investigate and who to prosecute based on the pre-announced policy guidelines agreed to with the government of the day, and not based on who that person is, what they stand for or who they know.

It is therefore not surprising that section 179(4) of the Constitution explicitly states that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. If reasonably possible, the relevant legislation must therefore be interpreted in such a way that it would protect the NPA from interference by the Minster or the President in any individual prosecutorial decision – including decisions to charge the Police Chief or to give indemnity to the police chiefs self-confessed murderer friends to testify against him.

The National Prosecuting Authority Act of 1998 strikes a fine balance between the need to uphold the Rule of Law, on the one hand, and the need to ensure that the NPA is political accountable, on the other. While confirming that the Minister of Justice has a duty to exercise final responsibility over the NPA, the Act envisages that this responsibility will be exercised by requiring the NPA to provide the Minister with information about the decisions taken by the National Director and the reason for such decisions.

The law makes clear that President Mbeki cannot fire Adv. Pikoli because of an “irretrievable breakdown of trust” between the Minister and the National Director. It seems to me there is also nothing in the act that allows the President to fire the National Director for making decisions that the President thinks is not good for national security. We are not paying the President to second-guess the decisions of the National Director and he has no power to second-guess the Director.

As we have seen before with the HIV/Aids debacle, the President is not infallible. No matter how certain he may be of his own view, he may well be wrong. It is exactly because Presidents often think they know everything and ought to be able to decide on everything that we have Constitutions with checks and balances that prevents Presidents from interfering in the way President Mbeki seems to want to interfere now.

If the President is allowed to get away with firing the National Director for vague and unspecified "national security" concerns, we are on our way to a Putin style "democracy" in which His Royal Highness has the final say in everything important - including who gets investigated and charged and who not. And then, well, good by Rule of Law and hallo to a national security state.

Tuesday, October 02, 2007

Et tu Zuma?

The Constitutional Court today rejected Schabir Shaiks' leave to appeal his conviction and sentence on the charges of corruption and fraud on which he was convicted in the Durban High Court. In a decision significantly not signed by an individual judge but by "The Court", the Court argued that there was no prospect of a successful appeal on the ground that Mr. Shaik had not received a fair trial.

The defense had a high mountain to climb because it had not raised the constitutional issues in either the High Court or the Supreme Court of Appeal. In the Constitutional Court the most important argument raised by the defense was that Mr. Shaik had not received a fair trial because he was charged on his own and not together with Mr Jacob Zuma.

The Court reiterated that the right to a fair trial was a substantive right that went beyond the rights specifically enumerated in section 35(3) of the Constitution and in an implicit rebuke of the "Stalingrad" legal strategy employed by Mr. Jacob Zuma's lawyers stated that:

It is also clear that fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment. A fair trial also requires: "fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime."
This seems to suggest that the Court will not easily entertain technical complaints masquerading as high constitutional principle and that the accused would have to show that he or she was really fundamentally prejudiced by the actions of the state before there would be any chance of declaring a trial unfair and unconstitutional.

In this case, Mr Shaik's lawyers had not shown that the applicant had suffered any prejudice. Mr. Zuma was asked to testify on behalf of the accused but he had declined (something I did not know before), but it cannot be said that this failure to testify had prejudiced the accused because it is impossible to predict what would have happened had the parties been charged together.

On a symbolic level this judgment reflects badly on Jacob Zuma (but his supporters seem immune to any moral opprobrium heaped on him) but I am not sure it is very significant from a legal perspective. It does not tell us anything about the legal issues most pertinent to the case and the court did not consider the non-constitutional arguments about the interpretation of the facts or the law.

The fact that the Court had decided not to allow one judge to sign his or her name to the judgment is very revealing though. This has only happened before in a hand full of highly charged political cases (including the floor crossing case and the Treatment Action Campaign case). It means the Court is acutely aware that the case would be scrutinised in the light of the succession race and the possibility of charges being laid against Mr. Jacob Zuma.

It reminds us of how poisonous the atmosphere has become in the run-up to the ANC December conference. Everyone is under suspicion, every judge a possible enemy. These are dark days for our democracy indeed.

Monday, October 01, 2007

Frene Ginwala: independent?

Frene Ginwala yesterday defended her appointment by President Thabo Mbeki to investigate whether there were legal grounds to fire the National Director of Public Prosecutions, Vusi Pikoli, saying that it was not a problem that she happened to be a member of the National Working Committee of the ANC, the party just co-incidentally headed by the same President Mbeki. Business Day reports:

One of the problems we have in this country is the view that a committed politician cannot be independent and cannot be impartial,” Ginwala said. The suggestion that politicians always put party interests before national ones was very “damaging” not only for the country but for the image of politicians.

Ginwala pointed out that she refused to resign from the ANC when she was appointed speaker. She challenged those demanding she did so to lay on the table any decision she took that was motivated by party political interests.

Those of us who remember her role in emasculating the arms deal investigation of Scopa just as it was gathering steam may find it difficult to keep a straight face when confronted by Ginwala's challenge. Of course the irony is that Ms Ginwala has built up a reputation as quite an independent minded person, which was why she was fired as Speaker.

This could either be interpreted as showing that she will be fearless and will not hesitate to make a finding that would embarrass the leader of her party, or conversely that she would have learnt her lesson after being fired and that she would thus now toe the party line at all cost.

The point is that no matter what she does, there will remain a reasonable suspicion that she could not possibly be impartial, given her political commitments. This means the investigation is probably fatally flawed from the start as those who disagree with its findings will all point to her membership of the NSC to show why her conclusions were wrong and biased.

The relevant provision of the National Prosecuting Authority Act actually provides the President with wide powers to appoint anyone he deems fit to investigate this matter. He is therefore within his rights to appoint Ginwala. He could have appointed Ronald kevin Roberts if he had wanted to. (Imagine what a wonderful but macabre show that would have been!)

But the point is that it is imperative that the process is respected. The NDPP fulfills a vital role in our democracy and removing him from office should be a last step which should be undertaken in a way that would leave no reasonable suspicion that he was fired to protect corrupt friends and comrades. Frene Ginwala will find it difficult to convince any of us that she is the person to deliver such a credible investigation.

Friday, September 28, 2007

Speak to us Mr President

The rumours, counter-rumours and newspaper leaks about the suspension of the National Director of Public Prosecutions (NDPP) and the alleged warrant of arrest issued for Police Commissioner Jackie Selebi, is deeply damaging to our democracy. If it is all true, it would mean that the President had illegally and unconstitutionally suspended the NDPP to protect the Police Commissioner. This would be a blanant abuse of power and also illegal.

This is such a grave charge that one should be careful to make it. In the past President Mbeki has always formally shown great respect for the Constitution and the law and one should not assume that he has abused his power. If it were to be true it would constitute a grave constitutional crisis because the President would have interfered with the working of the prosecuting authority and would have prevented it from exercising its powers "without fear favour or prejudice" as guaranteed by the Constitution.

It is therefore absolutely imperitave that the the President speaks to the nation immediately to dispell these ugly rumours. Every day that he allows the rumours to swirl, is a day in which we are forced to come closer to the conclusion that our President is not a true constitutionalist and that he would be prepared to abuse his power to interfere with the workings of the criminal justice system. This would confirm all the conspiracy theories bandied about by the Zuma supporters and could easily set us on a very dangerous path towards disrespect for the Rule of Law.

If the rumours are all untrue and the President assures us accordingly, then the harm could be minimised. If he fails to dispell the rumours, then he would at best have shown utter contempt for both us, the electorate, and the constitution which requires him to uphold and protect its provisions. His silence is undermining the constitution and our respect of it.

As I am out of the country (in Amsterdam) I might be missing something - why are people not more upset, toyi-toying in the streets, storming Parliament? - but it seems to me the continuous rumours is a real disaster and a real crisis for our young democracy. It is poisoning our political system and may do it irreparable harm because it will make us distrust our leaders and the system. If our Presidnet cannot see this, or if he thinks that he does not have to deal with it, he is not worth the name of President.

Speak to us, Mr President. We voted you into office and you owe us an explanation.

Wednesday, September 26, 2007

Manto's advert and the Health Act

My take on the advert taken out by the Department of Health to criticise the High Court judgment which allowed the Sunday Times to comment on the Minister of Health's health records was published in the Business Day today. It can be accessed here. The crux of my argument:
This means section 14 forbids a newspaper from publishing anything about anyone’s treatment or stay in hospital — no matter how important that person may be or what that person may have done in hospital. I would argue that this section unjustifiably limits the right to freedom of expression because it is over-broad and, in effect, prohibits newspapers from uncovering corruption, maladministration or abuse of power if it relates to hospitals.

The allegation that the health minister had abused her power to jump the queue for a liver transplant is a case in point. It is exactly the role of a free press to uncover the abuse of power by the custodians of our constitution.

If the minister had in fact abused her power in such a despicable way — which is something she denies — the public interest would overwhelmingly require newspapers to publish this relevant information to allow voters to decide for themselves what to think of the government of the day and whom to vote for in the next election.

Yet, if a newspaper published allegations of such abuse of power and relied on the medical records of the minister, it would be contravening section 14 of the National Health Act and would be committing a criminal offence. Section 14 can thus in effect be used by public figures to prevent the publication of embarrassing and damning details about corruption and abuse of power. This makes the section overly broad and, I would contend, unconstitutional.

Tuesday, September 25, 2007

President Mbeki owes us an explanation

The suspension by President Thabo Mbeki of Vusi Pikoli, the National Director of Public Prosecutions (NDPP), is a potentially earth-shattering event for our democracy. In the present political climate in which suspicions thrive and every action by the President will rightly or wrongly be viewed as a move in the ongoing succession battle, the Presidential interference in the administration of justice must be deeply worrying.

The Prosecuting Authority is a creature of the Constitution, which requires that it exercises its functions “without fear, favour or prejudice”. In other words, it is constitutionally bound to act independently and not to show any political or other bias in its day-to-day work.

However, this constitutional independence is not absolute. The National Director must formulate a prosecuting policy in concurrence with the Minister of Justice and the Minister also exercises final authority over the prosecuting authority. This means that the prosecuting authority must set policy guidelines in accordance with the policy positions of the government of the day, but must otherwise operate free from interference by either the Minister or the President.

In the event that either the Minister or the President is not happy with the decisions taken by the National Director, or where they fight and disagree with him, neither of them have the legal right to fire him. He is entitled to tell them to go to hell if he wants to.

This is clear from the National Prosecuting Authority Act of 1998, which limits the power of the President provisionally to suspend the National Director or to remove him from office. The President can only remove the National Director from office for:

  • misconduct;
  • on account of ill health;
  • on account of incapacity;
  • or on account of the fact that he is no longer a fit and proper person.

The clear implication is therefore that the President can only suspend the National Director if he has a reasonable suspicion that one of the factors set out above are present. The President then has to institute an inquiry aimed at establishing the existence of at least one of the objective facts set out above. Parliament must then endorse the existence of one of these factors and approve the removal from office before it can become final.

It is therefore deeply troubling that the statement issued by the Presidency makes no mention of incapacity, ill health or misconduct, but merely claims that there has been an irretrievable breakdown in the working relationship between the National Director and the Minister of Justice and Constitutional Development, Brigitte Mabandla.

The law makes clear that President Mbeki cannot fire Mr. Pikoli because of such a breakdown of trust. Morever, to fire Mr. Pikoli because he is not “fit and proper person” – also used in the Constitution as one of the reasons for impeaching a judge – would be difficult to do because the term has a restrictive meaning and suggest at least that the person targeted has done something illegal or extremely dishonest.

This means the only possible reason for the suspension and the possible firing of Mr. Pikoli is that he has been guilty of misconduct. For this to stick legally, the President will have to show that Mr. Pikoli had failed to follow the provisions of the enabling act and had, for example, failed to furnish the Minister with information about the exercise of his powers as required by section 33 of the Act.

In the absence of such proof we would be entitled to think that the President has overstepped his legal powers and has interfered with the administration of justice for political reasons. If it is correct that the President wants to fire Mr. Pikoli because the latter has not co-operated with the police to allow the Scorpions to report to the Minister of Safety and Security, Mr Mbeki might not have a legal leg to stand on.

This is because the National Prosecuting Authority Act has not yet been amended and there is therefore no legal duty on Mr. Pikoli to obey instructions to deal differently with the Scorpions as there is no legal basis for such an instruction. As an independent institution the prosecuting authority should not take instructions from the President, the Minister of the Commissioner of Police.

The statement from the Presidency suggests that the President and the Minster do not understand or support this important constitutional principle and believe that Mr. Pikoli has a duty to take orders from them. This is unfortunate as it creates the impression that the President and the Minister is interfering in, and thus undermining, the administration of justice in this country.

In any event, the cryptic announcement of the Presidency leaves open more questions than answers. The President owes it to the country to take us into his confidence and tell us the real reason for the suspension. If he fails to do that, most reasonable people will have good reason to suspect that he is abusing his power for political gain and that the whole saga is in some way or another related to the succession battle in the ANC.

Saturday, September 22, 2007

Now if they had only warned them about George Bush...

Only in the USA - Of course, it's in Phoenix, AZ. The BBC has more hilarious signs here. (Thanks Andrew for alerting me to this.)

Manto officials unwise (perhaps even stupid)

The Department of Health really knows how to generate bad publicity. Just as the controversy about the Minister alleged alcoholism and liver transplant queue jumping was dying down, its officials takes out a huge advert in daily papers to attack the judgment of the High Court in the case of Tshabalala-Msimang and Another v Makhanya and Others.

If only from a tactical perspective, publishing this advert was spectacularly unwise because it poured oil on a fire that was busy going out. It suggests a stubborn self-righteousness on the part of the Department officials. They really think by slagging off a judge in a paid for advert they will change the parameters of the debate around the Health Minister. Fat chance.

The advert is also problematic for at least two other reasons.

In a constitutional democracy like ours, there is a need to respect the principle of separation of powers. This means that the judiciary should not overstep the mark and intrude on the executive terrain. At the same time the executive should not be seen to interfere with the job of the judiciary.

When officials choose not to appeal a judgment of a lower court but then use tax payers money to criticise that judgment in the most disrespectful terms, stating like Sello Ramasala, the Head of Legal Services in the Department of Health, that the judgement was “a huge disappointment in terms of its internal contradictions and lack of coherence”, it suggest that the officials do not respect the boundary between the executive and the judiciary.

I am in favour of vigorous debate and criticism of court judgments as long as it does not impugn the dignity of an individual judge. It is therefore perfectly acceptable for lawyers and academics to argue that the judge in the Sunday Times case did not present a very good legal argument. But members of the executive have a duty to uphold the Constitution and the law and should not do anything seen as undermining respect for the law. This advert clearly does just that, suggesting that the judgement should not be respected.

Of course the advert is also problematic because the arguments put forward by the Head of Legal Services seem to fundamentally misunderstand the scope of the judgment. Mr Ramasala argues that the judge erred in finding that the Sunday Times had broken the law by possessing and quoting form the medical records – something prohibited by the National health Act – yet allowed the Sunday Times to continue commenting on the Minister’s health issues.

Mr Ramasala seems to think (or pretends to think?) that this means the judge allowed the Sunday Times to continue breaking the law from quoting from the Minister’s health records. But this is not what the judge did at all: he merely said that the Sunday Times could not be prevented from commenting on the unlawfully obtained records. This subtle but rather obvious difference eludes the learned lawyer from the Department of Health.

Of course this argument about the Minister’s health records is a red herring and has been used by the Department and the ANC to divert attention from the real issue which is whether the Minister is fit to continue in public office. Did she jump the queue to get a liver transplant, thereby abusing her power to save her own life and deprive another person from a life-saving operation? If she did jump the queue, she clearly is not fit even to sell second hand cars – let alone be the Minister of Health.

We also should focus on whether the Minister is actually doing her job. Given the difficult circumstances faced by our health care system, has the Minister’s stewardship made things better or has it been a disaster. Available evidence suggests the latter, but sadly this does not matter for those who can decide about the Minister’s fate.

Why would one worry about whether poor people are dying in our hospitals when one has an old friend to support and defend at all cost?