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.