Publication: Business Day Issued: Date: 2007-10-02 Reporter: Linda Ensor

Why Suspending Pikoli was an Error, Regardless

 

Publication 

Business Day
Date 2007-10-02
Reporter Linda Ensor

Web Link

www.businessday.co.za

 

It has been all too easy this past week to resort to personal interpretations of the drama over the dramatic suspension of national director of public prosecutions, Vusi Pikoli.

Personal problems require personal solutions ­ if Pikoli is being insubordinate and arrogant, suspend him.

Contributing to this approach was the drip-like emergence of the real reasons for President Thabo Mbeki’s actions. They went far beyond the mere “irretrievable breakdown” of Pikoli’s relationship with Justice Minister Brigitte Mabandla, which was the reason we were initially fed with.

The personalities involved have no doubt contributed to the crisis in the functioning and accountability of the National Prosecuting Authority (NPA) and the associated Scorpions. But the core of the problem remains the legal definition of their independence and the legal obligations on them to report to the executive.

It is less about the individuals involved than about the disjuncture between policy and the law that the Khampepe commission of inquiry left in its wake.

The cabinet adopted the commission’s recommendation that the Scorpions report to Safety and Security Minister Charles Nqakula and the NPA to Mabandla. But this was never formalised into law and therefore carried no weight with Pikoli, who has been intent on preserving the independence of the NPA as legally and constitutionally prescribed.

Previously, there was a direct reporting relationship between the NPA director and the president. Pikoli’s resistance may be interpreted as arrogance or insubordination. If he did not co-operate with Mabandla, this probably had more to do with differing views about what the NPA’s independence means and how the institution should function.

This underscores the existence of a legal vacuum, which needs to be urgently corrected by an amendment to the National Prosecuting Authority Act. Pikoli’s suspension can be no substitute for this.

If Pikoli’s interpretation of the NPA’s independence gave the institution more autonomy than Mbeki liked, then this is a matter for society to discuss and for Parliament to decide, not for presidential fiat.

Suspending Pikoli just after the NPA had obtained a warrant for the arrest of national police commissioner Jackie Selebi was a bridge too far and overstepped public sensitivities about the abuse of power and disrespect for the autonomy of constitutionally enshrined institutions.

The tendency also has been for Mbeki’s actions to be interpreted as the political machinations of the personally inspired kind, related to his political ambitions to be re-elected president of the African National Congress at the party’s December conference. He has been seen to be lopping off one political faction before it became too powerful, and playing one faction off against the other.

Little credit has been given to the idea that he acted out of a sense of national imperative ­ which could have included keeping the peace between the warring intelligence agencies or preventing the ructions of the presidential succession battle from unravelling the unity of the state, which it is Mbeki’s role to maintain.

But let us give the president the benefit of the doubt. Quite apart from political factionalism and quite apart from the alleged wish to protect Selebi, Mbeki had to act. The questions are whether his choice of what to do was the right one and whether he implemented it in the right way.

The answer, to both these questions, is no. There were surely other things he could have done if he believed the NPA and the Scorpions were acting outside their mandate. Suspending Pikoli personalised what is in fact an institutional and structural problem and showed scant respect for what should be the absolute independence of the prosecuting authority to pursue criminals, whatever their social and political rank.

A remarkable feature of the recent drama is the lack of faith we have in Mbeki, which highlights the extent to which he has exhausted his political capital and credibility. At the very moment he might have wanted to act the statesman, no one believed him. There is an important political message in there for him.

• Ensor is political correspondent.

With acknowledgements to Linda Ensor and Business Day.


*1       It's my theory and I'm sticking to it, but with the inspiration deriving from self-preservation and not self-actualisation.