The You-Know-Who Unit
The Court Orderly
THE controversy surrounding the arms deal has already revealed the propensity of our political leaders to act as lawyers. Could it be that beneath every voluble politician lurks a lawyer?
First, the trade and industry minister addressed a press conference in which he drew a carefully constructed legal distinction between primary contracts and secondary deals all to claim that government was squeaky clean in that it was only responsible for the primary transactions.
Later, Justice Minister Penuell Maduna, who is a lawyer (indeed, he has a doctorate in law), afforded the country the benefit of his reading of the Constitutional Court judgment dealing with the Heath special investigating unit. In essence, he reasoned that the judgment prevented the Heath unit from participating in the investigation.
The public can thus be excused if it is totally confused about what the law allows and what should be done to promote the principle of accountable government in this case.
A good start is to look at the Constitutional Court judgment dealing with Heath. The court found that a unit investigating corruption could not be headed by a judge. The court found that the functions of the unit and its head were far removed from the "central mission of the judiciary".
The court found that by heading such a unit a judge intruded into the executive domain in a manner that was impermissible in terms of a constitution that created a separation of powers between the executive, legislature and judiciary.
But the court ordered that the declaration of invalidity would be suspended for 12 months to allow either a new unit head to be appointed or for Judge Heath to become Mr Heath and continue as head but not as a judge.
For this reason, the judgment constitutes no obstacle to the unit becoming part of the arms inquiry. There is no basis on this point for excluding the unit.
A further reason that has been given in some press reports is that the unit had no evidence that justified a prosecution. The test of the utility of the evidence possessed by the unit is not whether a prosecution could be sustained at present, but whether there is any evidence to justify an inquiry.
The dust being kicked into the air by government about there being no evidence to convict anyone is an exercise in obfuscation.
Thanks to these questionable attempts to justify the exclusion of the Heath unit, the other agencies that can investigate capably have been sold short.
If such hopeless reasoning is employed to exclude Heath, it is easy to argue that government is intent on weakening the investigation by taking out the one body capable of finding the truth.
So what is to be done? Two options are possible: include the unit under a new head, or initiate a judicial commission of inquiry.
There is no reason why Heath is critical to the unit. He was not a heavyweight judge before he became head of the unit. As a judge in the Ciskei during the late 1980s he hardly distinguished himself as a human rights protector.
True, he did hand down enlightened judgments during the preconstitutional era once the African National Congress and the National Party began negotiations.
But that alone is hardly likely to classify him in the same league as judges such as Richard Goldstone or John Didcott. There is nothing to suggest that Heath is indispensable to a viable anticorruption unit.
The alternative is a judicial commission. Again, the judgment of the Constitutional Court becomes important. The court did not rule out the possibility of judges heading such inquiries "in appropriate circumstances".
What these circumstances may be was left open by the court. But the court did say that there were certain guidelines in determining whether a judge could perform a nonjudicial function.
These included whether the function is more usually performed by another branch of government; is subject to executive control; requires the judge to make decisions of policy rather than law; and involves the judge in law enforcement (beyond the powers relating to the subpoena of witnesses.)
On this basis there would be little wrong in having a judge chair such a commission of inquiry.
But this country has had a rather unfortunate record in this connection. Some commissions have so involved such political controversy that the very legitimacy of the bench has suffered.
Remember the Erasmus commission into Muldergate, the Munnik commission into Chris Ball and the Harms commission into the third force? Each proved highly controversial.
The further problem concerns the identity of the appointed judge. It would have to be a judge of sufficient public stature if the commission is to have legitimacy after all that has happened.
The best bet would be to find a new head of the unit who enjoys support from all the parliamentary parties, and then allow the joint investigation to go ahead.
In the final analysis, the vital constitutional principle of an open and transparent government is at stake.
With acknowledgement to Business Day.