Publication: Sunday Independent Issued: Date: 2004-05-30 Reporter:

Petty Actions Tarnish Image of Chief Prosecutor



Sunday Independent

Date 2004-05-30

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We should not underestimate the significance of the war of words that has broken out between the public protector, Lawrence Mushwana, and Bulelani Ngcuka, the national director of public prosecutions. It is, first of all, unacceptable and worrying that Ngcuka, the country's equivalent of the attorney-general of the United States, has chosen to react to the public protector's report on his abuse of power in a silly and intemperate manner.

Ngcuka's first response to the report was "Ag, shame. Poor Mushwana! I feel sorry for him". And yesterday Ngcuka and the former justice minister Penuell Maduna, accused Mushwana of taking part in an "orchestrated campaign" to discredit the national prosecuting authority (NPA) - referring to Mushwana's report as a "travesty".

The deeply worrying part of the row, however, has nothing to do, or should have nothing to do, with the personalities involved - but with the fact that the constitutionally mandated office of the public protector and the NPA were - and are - apparently unable to communicate in a mature and constructive fashion.

According to the findings made by the public protector and released on Friday, Ngcuka abused his power in investigating Zuma for corruption related to the arms deal. Mushwana was referring to the press statement issued by Ngcuka in August last year, saying that a prima facie case of corruption existed against Zuma but that the prospects of a successful prosecution were not strong enough.

Yet according to Mushwana, neither Maduna nor Ngcuka was prepared to tell his office whether the investigation into Zuma was continuing. The failure of both Maduna and Ngcuka to co-operate with him in his investigation was unconstitutional, Mushwana said, and set "a poor example to other organs of state in regard to co-operation between government agencies, as is required by the constitution". This is the real nub of the manner.

In his 93-page report, Mushwana said that on February 16 this year, Ngcuka had clearly indicated that the criminal investigation against Zuma was not continuing. However, four days later one of Zuma's associates received a summons to appear before the prosecuting authority to be questioned regarding "matters relating to the development and financing of a traditional village for Deputy President Jacob Zuma at Nkandla".

Having asked for clarification, Mushwana received a letter from Leonard McCarthy, the head of the Scorpions, declining to answer the question. Mushwana had thus been forced to ask President Thabo Mbeki to intervene so that the pair responded to his correspondence.

Ngcuka has now gone on record to say that the Zuma investigation had been concluded and he would "explain to parliament" why Zuma's associate had been summoned.

Why would the NPA not tell the public protector what the correct status of the Zuma investigation was? Or is Ngcuka merely biding his time - waiting for the scheduled trial of Schabir Shaik, Zuma's financial advisor, later this year, before his office returns to the matter of Zuma?

There exists a related matter that some may have forgotten. In the January report of the Hefer commission, Judge Joos Hefer noted that "months have elapsed since Mr Maharaj was questioned by members of the investigating directorate and no charges have yet been preferred, yet press reports about the investigation keep appearing. In a country such as ours where every person is presumed to be innocent until found guilty, this is wholly unacceptable." Yesterday Maharaj said that as far as he knew he was still being investigated. But no charges have been laid nor, on the other hand, had his name been cleared.

It would appear that there are a number of matters that, in the interests of everyone, Ngcuka should clarify. And one would hope that the NPA chief says something a little more informative than "Ag, shame".

With acknowledgement to the Sunday Independent.