Internal Political Battles in the ANC Seem to Cloud Mushwana Report
The DA has said from the beginning that the Public Protector's special report on the complaints by Deputy President Jacob Zuma, with its now widely publicised negative report card on the National Director of Public Prosecutions, Bulelani Ngcuka, must be debated in parliament as a matter of urgency.
We have also called for an ad hoc committee to scrutinise the report and the issues raised in it and make recommendations - in view of the fact that Public Protector Lawrence Mushwana has called on parliament to take action.
Accordingly we support the steps that Madame Speaker Baleka Mbete has taken thus far.
In this connection I would like to quote Kenya's Minister of Housing, Raila Odinga, who said recently: "The opposition must keep the ruling party in check, guarding against weaknesses and excesses - but should not oppose for the sake of opposing but seek to provide alternatives."
We agree with these wise words and we are glad to make common cause with the ruling party for the precise purpose of guarding against the weaknesses and excesses demonstrably attaching to the incumbents of some very important state institutions.
No one comes out of the fracas very well. Part of the problem as we see it is that the ANC government has appointed high-profile ANC politicians to posts which are meant to be the pillars of our justice system and the rule of law in our country, and which are required by our constitution and the law to be impartial and independent and to take decisions without fear or favour.
Sadly they appear to have become embroiled in internal political battles raging in the ANC around the corruption involved in the arms deal and succession to the current president.
We must guard against these institutions being used as pawns in a power-play game because this could be highly damaging to the system of constitutional law and justice so painstakingly crafted and built since 1994.
This issue must be seriously examined along with other cases of principle.
For example, surely as a matter of principle you cannot have everyone that the National Prosecuting Authority (NPA) investigates being given the opportunity to second guess the prosecuting authority by taking their case to the Public Protector before it ever gets to court as is happening repeatedly.
Surely it is mutually destructive and a huge waste of effort and resources.
The DA is considering suggesting possible amendments to the Public Protector Act to prevent this happening in future.
As for the report itself, having had the opportunity to study it and consult with senior counsel, there appear to be some possible errors and inconsistencies which need to be tackled.
For instance, the Public Protector seems to be misdirecting himself around the issue of a prima facie case and who has the capacity to decide whether there is one against a suspect. It is the prosecution which must decide whether, on the face of it, there is a case for a suspect to answer as well as whether there is a realistic prospect of success.
In terms of the NPA Act, the national director of public prosecutions certainly has the discretion to take this into account when deciding whether or not to prosecute. The courts must decide whether the prosecution's case has been proved beyond a reasonable doubt. The public protector needs to be asked about this.
Mushwana makes a big fuss about the fact that Ngcuka "probably" had not informed the Deputy President that there was a criminal investigation against him or subsequently that it was on hold or that it might have been restarted. There is nothing in the NPA Act which requires him to do so.
There are also a number of interesting aspects of the case revealed in the Public Protector's report: for instance, that Zuma was originally listed as accused number three in the case against Shabir Shaik and Nkobi Holdings.
This is not surprising as Zuma's name and alleged deeds appear all over the 45-page charge sheet. How else was Ngcuka to explain on August 23 last year why Zuma was not being charged in spite of being so clearly and publicly implicated in the matter the next day in court except in the way he did?
This and many other questions need to be examined by parliament.
Camerer is the DA's national spokesperson on justice, and will represent the party on the ad hoc committee appointed to investigate the Public Protector's report.
With acknowledgements to Sheila Camerer and the Cape Times.