Franny Rabkin
14 January 2009
Johannesburg — IN THE past few years, the relationship between the National Prosecuting Authority (NPA) and the executive has been fraught with tension, testing to the limits constitutional provisions governing the authority.
After Monday's Supreme Court of Appeal judgment against Jacob Zuma, there are now three different versions of the appropriate relationship between the executive and the NPA.
One is in former National Assembly speaker Frene Ginwala's report on suspended national director of public prosecutions Vusi Pikoli's fitness to hold office; another from Judge Chris Nicholson of the Pietermaritzburg High Court; and yet another from the appeal court in Bloemfontein.
At the heart of the puzzle are two seemingly conflicting constitutional provisions.
One says that national legislation must ensure the NPA exercises its functions "without fear, favour or prejudice". This provision was interpreted by the Constitutional Court to be a guarantee of independence for the NPA.
The other provision says that the justice minister must exercise "final responsibility" over the NPA. As Ginwala pointed out in her report, it is not at all clear what "final responsibility" means.
The tension between the executive and the NPA has emerged in two contexts, both replete with political sensitivity.
The first was in relation to Zuma's contention that former president Thabo Mbeki used the NPA to pursue a political rivalry.
Second, the tension emerged in Pikoli's argument that his suspension was a result of his refusal to let former justice minister Brigitte Mabandla interfere with his prosecutorial independence.
Because of Zuma and Pikoli, two courts and an inquiry have deemed it necessary to investigate and pronounce on the correct relationship between executive and NPA. All three forums came to different conclusions. Importantly, all agreed that when it came to decisions on whether to prosecute, the NPA was entirely independent from the executive.
But Nicholson advocated "total independence". In his view, former justice minister Penuell Maduna should in no way have been involved in former national director of public prosecutions Bulelani Ngcuka's decision to prosecute Schabir Shaik and not Zuma. He should not even have been present at the press conference where Ngcuka announced his decision not to prosecute, and should not have given the "political leadership" to which Ngcuka referred.
Nicholson also said Pikoli should not have been liaising with director-general in the Presidency Frank Chikane.
Ginwala said "the notion that there is no relationship, or role for, the (justice) minister in relation to the (NPA) is mischievous or at best, ill-informed".
Ginwala's understanding was that the NPA is part of the executive. She envisaged a co-operative relationship - but balanced by important safeguards to ensure independent prosecutorial decision-making.
Ginwala said the provision affording the justice minister "final responsibility" over the NPA meant more than "purely information passing". There should be "discussions" between the minister and prosecutions chief, and the minister could "bring to the consideration of the (national director of public prosecutions) such matters as government may find to be relevant in respect of such cases."
The Supreme Court of Appeal fell somewhere between Nicholson and Ginwala. In its judgment, overturning Nicholson's on Monday, it said Nicholson "overstated" the matter.
It reconciled apparent conflict between the two constitutional provisions in line with the approach in Namibia, saying "although the minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a prosecution, the minister is entitled to be kept informed". Thus the appeal court seemed to limit "final responsibility" to information giving.
To make it more complicated, the findings of all these forums are not, strictly speaking, legally binding. The Ginwala inquiry was not a court of law, and Nicholson should not have considered the relationship between the minister and the prosecutions chief, as the appeal court made clear on Monday.
The Supreme Court of Appeal felt it necessary to deal with Nicholson's findings "lest his judgment be considered authoritative." But it made it clear that the case was not about political meddling. As such, its views on the issue are not binding either.
If Zuma goes ahead with an application to stay the criminal proceedings against him, the constitutional issue will again be before a court, although that is not a guarantee that this legal uncertainty will be resolved.
Be the first to Write a Comment!
Copyright © 2009 Business Day. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
