STING IN SELEBI SAGA
The saga regarding the issuing of arrest and seizure warrants against national Police Commissioner Jackie Selebi will serve to further polarise the tripartite alliance in the run-up to the December ANC national conference.
In not so many words, Cosatu has already expressed concern about the issuing of the warrants against Selebi as the reason for President Thabo Mbeki suspending National Director of Public Prosecutions, Vusi Pikoli.
After a central executive committee (CEC) meeting, Cosatu is not at ease with what it termed a "constitutional crisis" presented by the Pikoli affair.
But Cosatu's statement seems to be premised on its belief that the Scorpions or state apparatuses are being used for individual political ends. This renders the labour federation's "constitutional crisis" argument irrelevant because it took the matter from the wrong end of the stick.
It becomes a constitutional crisis when the executive directly interferes with the judiciary's administration of justice.
If Mbeki and/or Minister of Justice and Constitutional Development Brigitte Mabandla had a hand in the withdrawal of the warrants, then the independence of the judiciary would surely have been compromised.
Our Constitution makes the separation of powers between the three spheres - the executive, the legislature and the judiciary - quite clear.
The nature of the executive/legislature relationship is such that the laws drafted by the executive have to be scrutinised and passed by the legislature.
This leaves the two spheres close to each other - to the extent of interfering in one another's affairs.
Also because parliament is dominated by the ruling party, whose parliamentarians include members of the executive, it often adopts a "caucused position" on a particular issue before it is tabled in the legislature.
This effectively blurs the line between the two spheres.
While the legislature has an oversight function over the executive and is therefore able to interfere in their work and vice versa, the situation is different with the judiciary.
The independence of the judiciary is supposed to be sacrosanct.
In a statement after the CEC meeting, Cosatu expressed concern about reports that Pikoli was suspended because he issued warrants against Selebi.
"If these allegations are true then we face a major constitutional crisis in the country and this would be a vindication of what we have always believed," said Cosatu.
"Now that it has been officially confirmed that indeed a warrant for Selebi was obtained on September 14 from the Witwatersrand deputy judge president, our worst fears have been confirmed and Cosatu believes we have a serious crisis."
The trade union body has been calling for the activities of the National Prosecuting Authority to be reviewed. This after the NPA charged Jacob Zuma for allegedly raping a daughter of a family friend and, currently, while it is probing possible charges of corruption against him.
A lot can be expected to come out of the proceedings of the Frene Ginwala inquiry into whether Pikoli was fit to hold office.
Of grave concern are rumours that the elite Scorpions unit is actually manipulated by white former apartheid-era securocrats intent on undermining the ANC government.
The same white officials were said to be feeding Pikoli with information that would pit him against Selebi or the Scorpions against the SAPS to justify the continued existence of the Scorpions separately from the police service.
The allegations against the Scorpions make sense because should they be part of the police, they will have their wings clipped and find themselves working alongside the police fraud units and reporting to Selebi.
Pikoli will have to answer to Ginwala as to whether in wanting to arrest Selebi for his alleged underworld shenanigans, he was not pursuing his personal vendetta and that of his white officials while he let prime crime suspects such as Glenn Agliotti off the hook. He will have to tell the commission whether his plea-bargaining arrangement with high-profile crime suspects put national security at stake.
A few months ago, we questioned the rationale behind plea- bargaining arrangements between the NPA and apartheid- era police minister Adriaan Vlok, his former police commissioner Johan van der Merwe and three officers who poisoned the then anti-apartheid activist Frank Chikane, now director-general of the Presidency.
We asked which fish the NPA was hoping to catch by opting for the five to be given lighter suspended sentences instead of being jailed for their confessed crimes?
We expressed the sentiment that plea bargaining as it is applied currently has become a mockery of the very justice which the NPA is supposed to pursue.
The public is asked: Is it fair to release eight men in order to catch one big fish in the case of Selebi and Agliotti. Is it good to release five men in order to catch an unidentified giant fish in the case of Vlok and others?
This is one side of the coin in the Pikoli suspension saga.
The other side is the hyped Mbeki or Mabandla involvement in stopping the warrant against Selebi. Judges and magistrates are usually wary of being manipulated by the executive in their judicial duties.
One would say that before a warrant is issued, the presiding officer scrutinises the evidence presented to him and the applicant has to justify why such a warrant has to be granted. The judge or magistrate decides on the basis of evidence before him.
The question then is whether national security, as implied by the terms of reference of the Ginwala Commission, overrides the decisions of judicial officials.
Ideally it should not, because the evidence was presented to that officer who had to pass his judgment based on it.
But there is another dimension to this. Sipho Seepe, a political analyst, said yesterday a warrant can be reversed if the prosecuting authority approached the magistrate or judge again with convincing evidence for the warrant to be withdrawn.
"This is not new, it's the court that decides whether to withdraw the warrant provided additional information is presented to persuade the magistrate or judge to reconsider his earlier decision to issue the warrant," Seepe said.
"It does happen sometimes to avoid a miscarriage of justice, especially in high-profile cases."