Yet Another Arms Probe Test for Independent Bodies
involved acted in good faith and in what they perceived to be the interests of
the country, does not make lawful legislation or conduct that is inconsistent
with the separation of powers required by the constitution."
These were the words
of the Constitutional Court when it determined last November that the head of
the special investigating unit should not be a judge. It found the unit's role
and powers which are determined by the executive detracted from the independence
of the courts and judicial officers' obligation to act impartially and
"without fear, favour or prejudice".
The so-called chapter
nine institutions, which include the public protector and auditor-general,
operate under precisely the same conditions of independence as the courts.
What then might the
Constitutional Court say were it to consider the nature of the participation in
the arms deal probe of those two institutions? Put another way, what do the
heads of these two institutions need to do, and avoid doing, to ensure that they
act according to the letter and spirit of the constitution?
Public Protector Selby
Baqwa and Auditor-General Shauket Fakie are operating in concert with the
directorate of public prosecutions, headed by Bulelani Ngcuka, who does not
enjoy the same constitutional independence. The signs are that Ngcuka is, in
many ways, driving the investigation.
In a sense that should
not be a problem. A probe like this needs to be co-ordinated to be effective and
Ngcuka probably has the greatest investigative capacity of the three.
Further, though his
long African National Congress history was a cause of alarm to the political
opposition when he was appointed as the country's top prosecutor, generally he
has been seen to conduct the directorate's affairs without any sign of undue
party political bias. However, there are two factors that should be of concern
to the public protector and auditor-general.
The first is their
independent constitutional status, which is not shared by the directorate. If
there is any sign that the directorate is pushing the investigation in a
direction they find uncomfortable, it would damage their standing.
The second is the
profoundly political flavour the saga has taken on in the past few months and
the pattern of events that suggest that the public protector and auditor-general
have found it difficult to avoid becoming caught up in these dynamics. In many
ways they are more in the political limelight than departing investigating unit
head Judge Willem Heath ever was.
The first signs of
this were their attitudes to the turnaround over the participation of the unit
in the probe. Their initial enthusiasm for a fourpronged investigation which
seemed evident after their first meeting with the public accounts committee
seemed to wane after government began to make clear its opposition to the unit's
involvement. Fakie, at least, later put out a statement denying he had changed
his stance, but some damage had been done. Baqwa, as far as can be ascertained,
has remained silent.
position was compromised again by the withering attack by four cabinet ministers
on his report on the arms deal. Again he belatedly defended his position. But it
was clear that he was finding the political pressure difficult to deal with.
And now there are
rumours of a new turn in the investigation. It seems that the directorate has
floated the idea of transforming the forensic investigation into a general
public hearing where those against whom allegations have been made would be
invited to respond to those allegations.
It is not clear that
there are any political motives behind this idea. It would not, however, serve
the purpose of a satisfactory investigation. A public inquiry might appear to be
a bold step, bringing the probe out into the open. It is even possible that a
couple of sacrificial lambs might be found to feed public unease. But it would
mark the end of hopes for a full investigation. It would probably scare off
witnesses and informants who have no desire for publicity. It would be no
substitute for a methodical forensic investigation, which should involve such
steps as the acquisition and analysis of reams of documents. And it may well be
that evidence that has not been developed fully is made public prematurely in a
way that makes it easier for culprits to cover their tracks.
Again, not for the
first time in this probe and probably not for the last, the public protector and
auditor-general are going to have to face the stresses of taking a view on the
proposal "without fear or favour". And they are going to have to do so
in a manner that they are seen not to be bending to political pressure.
It won't be easy. This
is why the arms probe is not merely a test of good governance and of
Parliament's oversight function. It is a test of the strength of the
acknowledgement to Alan Fine and Business Day.