Ngcuka Must be Humble and Admit Wrongs
The public protector has issued a damning report on the national director of public prosecutions, Bulelani Ngcuka.
I t is not the finding on the complaints under investigation that count. It is instead the conclusion, by Lawrence Mushwana, that Ngcuka and his office refused to co-operate, that they were "arrogant, insulting, aggressive and unhelpful".
In essence, while Mushwana finds that he cannot make a finding on whether Ngcuka abused his office in dealing with Deputy President Jacob Zuma's investigation, the alleged refusal and inability to be helpful to a legitimate, official and legal investigation points to a disregard for his office's responsibility. That amounts to dereliction of duty, which is not far off from abuse of office.
Zuma had complained that the Scorpions' investigation, into allegations that he may have received a bribe from a French company, had been conducted in a manner that infringed on his rights as a citizen of the republic.
He also complained about media leaks . Furthermore, Zuma complained that the declaration by Ngcuka that evidence existed of Zuma's (alleged) corrupt conduct, but for which he would not be prosecuted because conviction was not guaranteed, effectively meant that Zuma was being convicted but denied a hearing to respond and defend himself.
He further asserted that , consequently, this would amount to an abuse of office.
Mushwana said in his report that Ngcuka was wrong in making the statements about Zuma's alleged guilt.
He also found that the investigation was done without informing Zuma and that, in doing so, Ngcuka had violated Zuma's rights and impaired his dignity.
On the main count of abuse of office , Mushwana found that Ngcuka's reluctance to co-operate with the investigation meant a finding could not be made.
This is really where the problem lies. But to compound matters, Ngcuka has denied withholding co-operation.
Ngcuka's office expects citizens of this country to respond and co-operate daily with its demands in the name of justice.
Yet when they are put in the dock, as in this case, they seem to fail dismally. It is unacceptable.
At the time of writing this, Ngcuka's reported response was: "Ag shame , Mushwana".
This is not appropriate and serves, ironically, to confirm the disdain that Mushwana complained about.
Mushwana said he even had to resort to the Office of the President to try to get a response , but even that did not help.
Former justice minister Penuell Maduna is equally guilty for failing to assist the investigation, Mushwana found.
The fact that he is out of government means that not much would come from harping on his misdemeanour, but that does not make it right.
As Mushwana says in the report, the behaviour of these two "was not in the interest of justice (and) . . . set a poor example to other organs of state in regard to co-operation between government agencies, as is required by the constitution".
In other words, Ngcuka's alleged behaviour violated the constitutional duties that his office imposes on him.
A parallel investigation by the presidency on the leaks to the media found that there was no evidence to prove that Ngcuka "could have been party to leaks".
The presidency, however , found that there was "strong circumstantial evidence that privileged information . . . found its way to unauthorised persons outside its structures".
What then? Ngcuka has been a good national head of prosecutions who has tackled his duties without fear.
The Zuma investigation was not wrong. Once the allegations surfaced, it had to be conducted.
It may well have been conducted in an unfair manner. Parliament has now been called upon to take steps to make it clear to Ngcuka that he wronged Zuma and us as a nation.
The president has decreed that a ministerial co-ordinating committee should be instituted and that security measures be enforced. But the key question is whether the findings are of such a nature that Ngcuka cannot continue holding office.
He was humble in victory after the Hefer Commission cleared him of a smear campaign .
If he can find humility and apologise and admit his wrongs as well as implement the changes, there is no reason why he should not continue to serve us.
But then, this is a highly politicised matter and it may just be impossible for him to continue, as recent reports have hinted at pending changes in the leadership of the National Prosecuting Authority .
Should that happen, he should be remembered also as the man who presided over the creation of the office and for the good work it did and continues to do - not only for the mistakes of this case.
With acknowledgement to the City Press.