A looming constitutional crisis - Helen Zille

The DA leader warns against appointing a Zuma placeman to replace Pikoli as NDPP

Reports surfaced this week that President Kgalema Motlanthe is poised to appoint Muzi Wilfred Mkhize as the next National Director of Public Prosecutions (NDPP) to succeed Advocate Vusi Pikoli.

If this happens, it will trigger a constitutional crisis.

Advocate Mkhize was a member of Jacob Zuma's defence team when Zuma first appeared in the Durban Magistrate's Court on corruption charges in October 2005. Under no circumstances should Mkhize be put in a position to decide whether or not his former client should be charged with 783 counts of fraud, bribery and corruption. That would constitute a clear conflict of interests.

If President Motlanthe appoints Mkhize, it will be clear why the ANC nominated Motlanthe as President when Thabo Mbeki was "recalled" last year.  The conclusion would be irresistible that the ANC required Motlanthe to appoint a compliant National Director of Public Prosecutions who would make the charges against Zuma go away.  Then Zuma would have a clear run for the Presidency without the cloud of an imminent corruption trial over his head. The first step was to fire Pikoli.  The second step, according to this line of analysis, is to appoint a Zuma man as the country's chief prosecutor, in accordance with the ANC's infamous deployment policy.

Motlanthe appears to be resisting this mandate, which could be part of the reason for the move by the ANC to isolate him.

The dangers of appointing Mkhize to this high office are underscored by an episode from his own career history. He has been both player and referee in a legal matter before.

In 2005, Mkhize chaired an internal disciplinary inquiry in the Ubuhlebezwe (Ixopo) Municipality, in which he found the chief financial officer guilty of misconduct and recommended his immediate dismissal. It subsequently emerged that prior to the hearing, Mkhize had given the municipality a written legal opinion on the issue, and recommended what charges should be laid. His opinion stated that "on those charges he [the chief financial officer] will be found guilty and be dismissed".

Mkhize's ruling was overturned on review before the Natal Provincial Division. He was found guilty of professional misconduct by the KwaZulu-Natal Society of Advocates, and ordered to pay the society a fine of R10 000 - the maximum amount which could be imposed under the society's rules.

Mkhize's integrity has been put to the test once before, and was found wanting. Now it seems that the ANC wants to entrust him with one of the most important constitutional offices in the country.

Never mind the fact that the National Prosecuting Authority (NPA) Act requires the NDPP to be a "fit and proper person", whose appointment must be made "with due regard to his or her experience, conscientiousness and integrity."

Never mind the fact that the Constitution requires the prosecuting authority to exercise its functions "without fear, favour or prejudice".

That is of no concern to the ANC. Such is the ANC's disdain for the law and the Constitution. Last week it was considering deploying convicted fraudsters like Winnie Madikizela-Mandela and Tony Yengeni to Parliament. This week it is reported to be getting ready to install Zuma's former defence lawyer as the head of the NPA. This is the man with the final power to decide whether or not Zuma will answer the case against him in court; a man whose bias towards the ANC President and whose history of double-dealing should immediately raise question marks about his ability to perform his constitutional duties without fear, favour or prejudice. He should never have been considered for the position in the first place.

But as with Madikizela-Mandela and Yengeni, so with Mkhize: the ANC is prepared to contemplate the most unsuitable candidate for the job, as long as he or she can be expected to do the ruling party's bidding. It's a case of choosing malleability over merit and compliance over competence.

To add insult to injury, only the President can appoint Mkhize since the Constitution confers upon the President the power to appoint the National Director of Public Prosecutions.

This would be a stitch-up worthy of Robert Mugabe himself. It would be the ultimate abuse of power and the ultimate triumph of the "higher law of the party" over the rule of law. It would be the politics of the closed, crony society - in which the ruling party's ruling clique promotes and protects its network inside and outside the party while the network, in return, protects and promotes the leadership - come full circle.

And, because the President would be willfully violating a provision of the Constitution in appointing Mkhize to an institution whose independence is protected by the Constitution, it would trigger a constitutional crisis.

The most galling aspect of Zuma's campaign to avoid justice is the way in which he and the ANC have undermined the Constitution and its institutions in the interests of self-preservation.

The saga began with decision by Zuma and his inner circle to disband the Directorate of Special Operations (DSO, or "Scorpions") and replace it with a Directorate for Priority Crime Investigation located in the South African Police Services (SAPS). Locating the new unit in the SAPS suits the ANC, since it is far easier for politicians to interfere with the work of the SAPS than the NPA because of the constitutional guarantee that the NPA must operate "without fear of favour".

The saga is currently unravelling further in Parliament, as ANC MPs try to steamroll the joint ad hoc committee reviewing President Motlanthe's dismissal of the former NDPP, Vusi Pikoli - the man they view as Zuma's nemesis.  The ANC seems determined to rubber-stamp President Motlanthe's decision, despite the recommendation by the Ginwala Commission that Pikoli be reinstated.

And the saga will culminate if and when Muzi Mkhize is appointed the National Director of Public Prosecutions in Pikoli's stead so that he can drop the charges against his old client.

Clearly, that would be an untenable outcome. In any event, the DA does not believe that the President should have the sole prerogative to appoint the NDPP, since this undermines the constitutionally-entrenched principle of the separation of powers.

We advocate the establishment of a body similar to the Judicial Service Commission to oversee the appointment of National Directors in future. This, we hope, would help to resolve the present anomalous situation in which the National Director is a political appointee, appointed purely at the behest of the President. For that reason, we are busy preparing to submit a Private Members Bill which would make the necessary alterations to the existing NPA Act.

If enacted, it would go some way to averting the kind of constitutional crisis that Zuma appears determined to create.

This article by Helen Zille first appeared in SA Today, the weekly online newsletter of the leader of the Democratic Alliance, January 30 2009