President Thabo Mbeki's suspension of Vusi Pikoli as national director of public prosecutions (NDPP) - apparently in an effort to prevent the prosecution of his chief of police, Jackie Selebi - has been widely interpreted as an assault on the constitution. This is most certainly true, at a profound level.
One of the founding values of the constitution is the "supremacy of the constitution and the rule of law." And it is one of the most basic principles of the rule of law that no-one should be above the law - not even the president or his political cronies. As A.V. Dicey famously wrote, the rule of law means (inter alia) "the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts" and it excludes "the idea of any exemption of officials or other from the duty of obedience to the law which governs other citizens."
Yet, at the level of the profane, the presidency has itself cited certain provisions of the constitution to justify Mbeki's actions. The difficult truth is that the section of the constitution dealing with the prosecution authority - and the legislation that resulted - is actually rather ambiguous. This is why the presidency and its critics have been able to quote it against each other on this matter. To understand why this is, it is necessary to understand the political context behind it.
The independence of the office of the various provincial attorneys-general was first enshrined in law through the Attorney-General Act of 1992. This Act, which came into effect in January 1993, introduced various provisions to safeguard the independence of the then provincial attorneys-general. The power the minister of justice could (in theory) exercise over them was greatly curtailed, and they were made answerable only to parliament.
All attorney-generals, and their deputies, were now required to swear an oath on taking office to perform their duties and exercise their powers "without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the law and customs of the Republic of South Africa."
The state president could only suspend an attorney-general on very limited grounds. These were for "misconduct; on account of continued ill-health; or, on account of incapacity to carry out his duties of office efficiently." Such a suspension had to be communicated to parliament within 14 days, if it was in session; or 14 days after the commencement of the next session, if it was not. Parliament could vote to restore the attorney-general concerned to office, and it was only if they chose not to exercise this right, that the president could confirm the suspension and remove the individual concerned from office.
The National Party acquiesced to this legislation because it realised (and accepted) that it was soon going to be out of power. It clearly did not want the formidable powers formerly wielded by the minister of justice over the prosecuting authority (if not actually used) to fall into the hands of its political opponents.
At this time the ANC also made noises about respecting the independence of key state institutions. In mid-1993 Tokyo Sexwale - then chairman of the ANC in the PWV region (now Gauteng) - promised that "under an ANC government the attorneys-general and the auditor-general would be independent to ensure that economic crimes were pursued without political interference. The ANC did not want to be part of an Africa that had failed because of corruption." (Sapa June 25 1993)
However, within months of the ANC coming to power, the new Minister of Justice, Dullah Omar, mooted the appointment of a politician to the (to be created) position of "super attorney-general". On November 16 1994 Deputy President Thabo Mbeki was asked, by an opposition MP in parliament, whether he was in favour "of the appointment of a national chief attorney-general who will link the Office of the Attorney-General directly to the Executive?" Mbeki replied, without answering the question directly:
"There are some basic propositions on which we are all agreed. One of them is the question of the independence of the judiciary. Therefore there is a desire on the part of the Government, of the Executive, not to intervene or interfere on issues in such a way as to distort the fair dispensation of justice."
In an editorial the following day the Cape Times stated that under the current dispensation the attorneys-general "can and do institute prosecutions that may be embarrassing to the ruling party of the day."
Noting Mbeki's comment about the ANC's commitment to judicial independence it pointed out that "such a claim would no longer be true if a cabinet minister or similar government functionary assumed overall control of attorneys-general, with the power to intervene in decisions they take on prosecutions or to institute proceedings independently of them. On the contrary, it would constitute direct political involvement in the due process of law - a highly undesirable precedent."
How would a political appointee, the editorial asked, reconcile "their duty to serve their party's best interests with the objectivity that justice demands?" The temptation would always be to protect political allies, while "prosecution of the attorney-general's political opponents, should such a situation arise, would immediately be interpreted as abuse of the position."
Despite these warnings the ANC pushed ahead with this plan. The party's March 1995 constitutional proposals stated: "The highest judicial executive officer shall be the Attorney General who shall be a member of the Cabinet and who shall be responsible for prosecuting offences in the name of the People of South Africa. The provincial Attorneys-General shall be accountable to him."
In reaction the incumbent attorneys-general warned, in their submission to the Constitutional Assembly in June 1995, that the "creation of a national or ‘super' attorney-general would leave the country's prosecutorial agencies open to political interference and manipulation." (Cape Argus June 6 1995)
The final constitution, adopted in 1996, gave the ANC much of what it wanted, short of making the position of national attorney-general a cabinet position. Section 179 provided for a "single prosecuting authority in the Republic" headed by a National Director of Public Prosecutions. This person would be entitled to "intervene in the prosecution process" and could review any "decision to prosecute or not to prosecute" by one of his subordinates. It also stated that the justice minister "must exercise final responsibility over the prosecuting authority."
Although this clause was clearly designed to facilitate greater control over the prosecution service by the ANC, it nonetheless stated that, "National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice."
This schizophrenia was carried over into the final National Prosecuting Authority Act of 1998. The Act was a strange hybrid, which combined the provisions of the 1992 legislation, designed to protect the independence of the attorneys-general, with the measures set out in the constitution which were intended to stifle it.
It included a provision which allowed the president to "provisionally suspend the National Director or a Deputy National Director from his or her office, pending such enquiry into his or her fitness to hold such office as the President deems fit." As recent events have revealed, this allows for the president to remove the NDPP on even the most contrived charges - and then handpick a political ally to conduct the enquiry.
It was in the second half of 1997 - in the run up to the ANC's 50th national conference later that year - that the long submerged totalitarian aspirations of the ANC were allowed to surface. In 1998 the new ANC leadership set out to bring all state institutions - including supposedly independent watchdog ones - under party control.
On May 3 1998 the Sunday Times reported that the ANC's secretary-general, Kgalema Motlanthe, had announced that the party "would review the power held by independent watchdogs if it won a two-thirds majority in the coming election." According to the article Motlanthe had said that such a majority would "enable the ANC to form a government ‘unfettered by constraints'. Among the institutions the ANC wants to review are the Judicial Service Commission, which advises the President on the appointment of judges, the auditor general, the attorney general and the Reserve Bank."
In the event there was no need to change the constitution as the ANC were able to get their way through a combination of cadre deployment and democratic centralism. Party loyalists were placed in key positions and they were expected to implement the will of, and remain answerable to, the ANC. It was as part of this process that, on July 16 1998, Deputy President Mbeki appointed the senior ANC MP, Bulelani Ngcuka to be the first NDPP.
It is worth noting that these efforts to seize control over all the levers of state power ran along side the setting up of the arms-deal. For instance, it was at the end of August 1998 that a cabinet sub-committee, chaired by Mbeki, chose the preferred bidders for the various strategic defence packages. Whatever the other motives at play the arms deal - rotten as it always was going to be - provided a powerful additional incentive for the new ANC leadership to clip the wings of watchdog bodies.
This approach of appointing party loyalists but leaving the constitution unaltered gave the ANC leadership the best of both worlds. After parliament, in a fit of absent-mindedness, launched the inquiry into the arms deal in late 2000 ANC placemen in the offices of the public protector, auditor-general, and national prosecuting authority, acted in concert to shield key ANC decision-makers from proper investigation. Yet when the politically manipulated final report of the investigative team "cleared" government; ANC cabinet ministers could brandish the constitution and claim that they had been exonerated by "independent structures."
Equally, when the NPA announced that it had decided to prosecute Deputy President Jacob Zuma the presidency was at pains to deny that it had had any say in the matter. This was despite the fact that Vusi Pikoli and Mbeki had gone on a visit to Chile together shortly beforehand. A statement issued by the presidency on the day the decision was announced said:
"The National Director of Public Prosecutions, Advocate Vusi Pikoli, today, June 20 , informed President Thabo Mbeki that the National Prosecuting Authority will advise former Deputy President Jacob Zuma of its decision to prefer charges against him. President Mbeki was informed as a matter of courtesy and was not asked for any comment. The President hopes that all South Africans will allow the law to take its course."
Looking back, it is striking how all the predictions made in the mid-1990s of the dangers of centralising and politicising the office of the attorneys-general have now come to pass. The decision to prosecute Zuma was interpreted within the ANC as a deeply political one, despite all the protestations to the contrary by the presidency. This was both because the NDPP was understood to be a political appointee, and because Zuma and his supporters saw that those "more guilty" of corruption were being shielded. Moreover, when Pikoli took the principled decision to press charges against Selebi; Mbeki succumbed to the temptation to intervene to protect his political ally. The point really is that if section 179 was not actually designed to protect the independence of the prosecution authority. And this weakness in the constitution has certainly facilitated the abuse of power that the country has witnessed over the past few weeks.