Publication: Mail and Guardian Issued: Date: 2008-12-12 Reporter: Sam Sole

How Ginwala Blew It



Mail and Guardian



Reporter Sam Sole

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Mbeki’s choice of Frene Ginwala to lead the inquiry on Vusi Pikoli was always likely to deliver two things: a determination to protect Mbeki and a display of executive deference.

Ginwala demonstrated both qualities early in Mbeki’s career as president when, as parliamentary speaker, she
backed his spurious decision to block the Heath unit’s involvement in the arms deal probe and supported the executive’s push to subvert proper oversight of the deal.

Her report, released this week, found no substance in the reasons government gave for Pikoli’s suspension. But instead of using this to
interrogate the real reasons, she looked for others that could have justified it.

Her critique of Pikoli’s supposed insensitivity to “national security” and “the political environment” is
so overblown as to undermine her call for his reinstatement.

In reality she gave President Kgalema Motlanthe the grounds he needed to dispatch a powerful public servant whose independence threatened ongoing headaches for the executive.

Motlanthe cynically took the gap -- but it was Ginwala’s determination to protect Mbeki that opened it for him.

Pikoli’s central allegation was that he was suspended to torpedo his intended actions against police National Commissioner Jackie Selebi. He argued that the government’s main reason -- the supposed breakdown in his relationship with Justice Minister Brigitte Mabandla -- was a smokescreen.

The facts elicited by the inquiry support him. Ginwala found the relationship did not break down; that none of the government’s reasons justified Pikoli’s suspension; and that justice Director General Menzi Simelane was forced to scratch around to “try to make something stick on advocate Pikoli”.

She found no reason to question Pikoli’s bona fides, ascribing to him the highest degree of integrity. The obvious corollary would have been to probe the real motivations of Mbeki, Mabandla and Simelane.

In fact Ginwala blames Simelane for everything. Mabandla emerges as
barely capable, misled by him at every turn.

Despite this evidence of Mabandla’s incompetence, she condemns Pikoli’s reluctance to treat the minister as a virtual equal in running the National Prosecuting Authority (NPA). And she
weasels out of scrutinising Mbeki’s role.

Indeed, she engages in the most superficial way with Pikoli’s assertion that he was suspended to stop arrest and search warrants for Selebi being carried out.

Ironically, the sequence of events confirmed by the inquiry supports Pikoli’s suspicions.

Here’s the evidence:

# Simelane is unlikely to have misled Mbeki as Ginwala confirms the president had 10 briefings from Pikoli on the Selebi investigation. Mabandla was also briefed and never objected -- until Mbeki realised search and arrest procedures were imminent and wrote to her about it.

# On receipt of Mbeki’s letter, Mabandla wrote to Pikoli instructing him “not [to] pursue the route that you have taken steps to pursue” until she satisfied herself there was “sufficient” evidence for Selebi’s arrest. The reasonable inference is that Mabandla’s attempt to interfere -- which Ginwala rightly condemns -- was at Mbeki’s instigation.

# To exonerate Mbeki, Ginwala relies on a bland letter from the president to Mabandla instructing her to “obtain the necessary information from [Pikoli] regarding the intended arrest …” and noting: “This would enable me to take such informed decisions as may be necessary with regard to the national commissioner.”

This ignores the fact that Mbeki’s letter is a second request for something he had already received.

Earlier, after Pikoli told Mbeki of the arrest and search warrants, he was asked to prepare a written report “to enable the president to apply his mind as to what he needed to do about Selebi”. Pikoli presented this.

# Indeed, it was Pikoli’s refusal to let the minister second-guess his decision to prosecute Selebi that prompted her demand for his resignation. When he refused, the president also asked him to resign. When Pikoli refused again, the president signed a letter of suspension that again underscored the centrality of the Selebi matter.

That letter refers to “information that has come to the attention of the president that advocate Pikoli entertained the granting of immunity to members of organised crime syndicates”.

This could have referred only to agreements being negotiated with accomplice witnesses, such as Glenn Agliotti, for testimony against Selebi.

# Ginwala’s main evidence for rejecting Pikoli’s account of his suspension was the fact the prosecution of Selebi eventually proceeded. As Pikoli’s lawyers point out, Selebi was arrested only after Mbeki’s defeat at Polokwane and after an independent panel agreed he should be prosecuted.

Vital searches of Selebi’s home and office at police headquarters were never carried out, while documents requested from police have not been handed over.

# Ginwala, in effect, finds that the reason for Pikoli’s suspension was the Selebi matter, but
spins it.

Pikoli disclosed that Mbeki initially asked for two weeks’ grace before executing the warrants, to create “an enabling environment” for action against Selebi.

Pikoli thought this was too long to sit on the warrants, but said he could wait a week. He was suspended a day before the week was up and Ginwala speculates his suspension was motivated “by the need to avert the possible threat to national security that may have resulted if the warrants were executed before an enabling environment was created”.

But Ginwala ignores the most damning evidence of all: Mbeki did nothing after Pikoli’s suspension to create an “enabling environment”. Selebi was not suspended nor did the president instruct the police to hand over the relevant files.

Only after January 1, when the NPA reconfirmed its determination to prosecute Selebi, did Mbeki call an emergency meeting of the National Security Council to “prepare the way”. And only after Selebi lost his January 10 court bid to stop his arrest did the president finally place him on “special leave”.

In the end Ginwala’s bid to exonerate Mbeki on the charge of interference required the introduction of a
bogus justification for his actions -- the old bogey of “threats to national security”.

Now Motlanthe has raised the same excuse to justify shafting Pikoli. Beware --
this bogey will be back to haunt us all.

With acknowledgements to Sam Sole and Mail and Guardian.

Just when we thought it was safe to get back in the water, along come sharkfaces Motlanthe and Ginwala.

Just how is it that for all the supposed checks and balances in our brand new constitutional state that weasel sharks like these are allowed to run rampant.

Even with the Chapter Nine institutions we have politically-appointed wossops like Shauket Fakie and Selby Baqwa and Bulelani Ngcuka creating an enabling environment for these bottom feeders to thrive.

I have read the Ginwala report. It is clearly written by someone inexperienced and unfamiliar in heading legal enquiry of this nature. She might have done this once or twice in her life. A judge would have done it a hundred times or more.

What I find particularly confusing about Ginwala's report is its Conclusions chapter. It seems like an amalgam of a summary of the allegations and her half-baked findings.

What a Conclusions section should do is provide a clearly demarcated summary of the allegations and then a clearly demarcated summary of the Key Findings. It should also clearly indicated the importance and weight of each of the key findings relative to each other and relative to the allegations.

Ginwala cleverly is able to mishmash the whole lot together in order to allow a lowlife like Motlanthe or Mbeki to cherry pick something that they can use to do their dirty work.

Ginwala's effort and the report itself do not strike me as the those of a competent or qualified person. It might be said that she was unfit to hold that office.