We must fight for the independence of the NPA

This week saw former National Director of Public Prosecutions, Vusi Pikoli, accept a R7.5 million out of court settlement on condition that he withdrew the court challenge contesting his dismissal. This opened the way for Menzi Simelane - a former Director-General in the Justice Department and no friend of prosecutorial independence - to be appointed as the NDPP.

Those who see the Pikoli settlement as just an expensive labour dispute between an employee and his former boss are gravely mistaken. This settlement has profound implications for the health of our democracy.

Many people do not see this. Mediations such as the Pikoli settlement tend to find broad acceptance because, on the surface, two parties in conflict have reconciled. And reconciliation is generally accepted as a good thing. In a context like this it is not.

Mediation is the wrong course of action when it is in the public interest to establish the truth of a matter. Inevitably, in such situations, a mediated settlement means compromising the truth in the interests of "reconciliation". And, in the Pikoli mediation, we believe the outcome has struck a blow to the heart of our Constitution.

This is certainly not Pikoli's fault. Mediation was not his first choice. Initially when he was fired, he turned down a R10-million golden handshake in order to contest his dismissal. Now he has succumbed because, as an individual, he and his family were being financially and psychologically crushed by the abuse of state power. Reaching a settlement was the only way out. At least it salvaged his honour (by having his professional integrity reaffirmed) and saved him from financial ruin.

In this context it is important to remember that Pikoli was suspended by former President Mbeki in September 2007 after Pikoli refused to withdraw the charges against Mbeki's friend Jackie Selebi. In December 2008, President Motlanthe turned the suspension into a full dismissal after Pikoli refused to withdraw corruption charges against Jacob Zuma.

The irresistible conclusion is that Pikoli was fired because he refused to succumb to political pressure. We believe that he was doing his job, independently, as required by the Constitution. He insisted on pressing corruption charges against top ANC cadres - including Jacob Zuma.

Given the circumstances, it was crucial to have these conclusions tested before a court of law. But, yet again, a matter of profound public interest will never be subject to cross-examination because top politicians are determined to prevent this. Court hearings are reserved to target those who have fallen out of favour with the ANC power hierarchy (such as Jackie Selebi). If the outcome of Polokwane had been different, it is likely that Jacob Zuma would be answering questions in the dock today, and Jackie Selebi would be a free man, re-instated as National Police Commissioner. This is what has become of the criminal justice system under ANC rule. The principle at the heart of our Constitution - equality before the law - has become an empty slogan. The hypocrisy of President Zuma's professed "war on corruption" should be treated with the disdain it deserves. It is a selective strategy to target those who opposed Zuma's ascension to the Presidency, and protect his allies.

A closer examination of the Pikoli mediation demonstrates this. A key condition of the mediated settlement (see here) was that government would "re-affirm its commitment to the principle of prosecutorial independence." Before the signatories' ink had dried, President Zuma reneged on this commitment. He appointed Menzi Simelane to succeed Pikoli.

It is well known that Simelane has no respect for the constitutional principle that requires the National Prosecuting Authority (NPA) to carry out its duties without fear or favour. Indeed, a key finding of the Ginwala Commission was that Simelane had unlawfully interfered with the prosecutorial independence of the NPA. Now this very man is the head of the NPA. What hope is there that the NPA will function independently? Indeed, Advocate Simelane's record suggests he does not believe that it should. He clearly believes that the NDPP should answer to the Department of Justice, where he was once Director General and where his relationship with Vusi Pikoli deteriorated.

The great irony is that Pikoli, who the Ginwala Commission found fit to hold office, was fired. Simelane, who the Ginwala Commission found was not fit and proper, has been appointed Pikoli's successor. This is the outcome of the ANC's closed, crony approach to justice that is now infecting the entire criminal justice system. And it was aided and abetted by a "mediated settlement" in a matter that should have been subject to a rigorous and unrelenting search for the truth.

I believe, and constitutional expert Pierre de Vos confirms it, that Zuma's appointment of Simelane was unlawful. In law, it is the prerogative of the President to appoint an NDPP of his choosing. But this power is not unfettered. It is limited by the NPA Act which states that the NDPP must be a "fit and proper person with due regard to his or her experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned."

Simelane fails to meet this requirement. He cannot be entrusted with the most important responsibility of that office, namely the constitutional prescript that the NPA must exercise its functions without fear, favour or prejudice.

The President does not have free rein to appoint a person who does not meet the requirements, set out in law, for the position. The Democratic Alliance is currently seeking legal advice to ascertain whether Zuma's decision is reviewable by a court and whether such a legal challenge would have a reasonable prospect of success.

We believe that the dismissal of Pikoli and the appointment of Simelane is pure power abuse. Zuma knows that Pikoli, unlike Moketedi Mpshe, would not have dropped the charges against him, a point that Pikoli re-iterated last week. Zuma also knows that the DA is seeking a High Court review of Mpshe's decision to withdraw the charges against him. If that review succeeds, the case will have to proceed. In this context Zuma could simply not risk having an independently-minded NDPP. He needed to find someone - like Simelane - who believes it is the job of the NDPP to do whatever government tells him to.

The DA will fight this appointment, just as we are fighting the NPA's decision to drop the corruption charges against Zuma. This is not a vendetta against Zuma, as some people believe. It is essential in the defence of the Constitution. Equality before the law is a principle that every single South African must defend, before they themselves become victims of power abuse. We cannot wait until our criminal justice system has been eroded to such an extent that it only serves the interests of the politically powerful rather than the interests of justice. We are already perilously close to that point.

We must fight this power abuse because, if we don't, the precedent will be set that the NPA is nothing more than an extension of the ruling clique of the governing party. Most of all, we must fight this power abuse because nobody else will.

This article by Helen Zille first appeared in SA Today, the weekly online newsletter of the leader of the Democratic Alliance, November 27 2009

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