'dISMISSAL of pikoli unfoundeD'

Nichola de Havilland

The current proceedings in Parliament to dismiss Vusi Pikoli, the national director of public prosecutions, have implications that go far beyond the fate of a senior office bearer: they cut to the very root of the rule of law and may have implications for the future leadership of South Africa.

The independence of the National Prosecuting Authority is one of the cornerstones of our justice system.

The prosecuting authority has the sole power to institute criminal proceedings on behalf of the state. It is accordingly of crucial importance that the NDPP must, in terms of the National Prosecuting Authority Act of 1998, "be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity".

If the prosecuting authority cannot exercise its functions with absolute independence "without fear, favour or prejudice", as the Constitution requires, our whole system of justice is open to abuse.

This is particularly the case when the prosecuting authority is required to prosecute senior politicians and officials who may be guilty of criminal acts or corruption.

The NPA has already been seriously weakened by the recent passage of legislation to abolish the Scorpions that gave it a highly effective ability to investigate serious crimes and corruption.

Since November 2007, Pikoli has been fighting for his career after he refused to accept illegal instructions from former president Thabo Mbeki and Justice Minister Brigitte Mabandla to delay the prosecution of the Commissioner of police, Jackie Selebi.

The process involved in the dismissal of the national director requires the president to suspend him and to set up an enquiry into his fitness to hold office. The matter must then be referred to Parliament, which must decide within 30 days whether or not the NDPP should be dismissed.

After Pikoli's suspension, Mbeki set up the Ginwala commission to enquire into Pikoli's fitness to hold office. The commission found that the government had failed to substantiate any of the reasons given for his suspension, and specifically concluded that he should "be restored to the office of the NDPP".

The commission also found in Pikoli's favour in respect of his fitness, finding him to be ". a man of unquestionable integrity, with passion to execute his constitutional responsibilities without fear, favour or prejudice".

Nevertheless, President Kgalema Motlanthe ignored the commission's recommendation and pressed ahead with his dismissal on the grounds that he was insensitive to national security and the political environment.

This charge was not before the commission and could accordingly not be addressed by Pikoli in his defence. It is also not one of the grounds for dismissal listed in the NPA Act of 1998.

Even though Parliament has not completed its deliberations on whether or not to accede to the president's request to dismiss Pikoli, it is widely accepted that it will approve the decision. If it does so, Motlanthe will have to find someone to replace Pikoli.

The phrase "fit and proper" in this regard is the same as is required of all judicial officers and has a well established juristic meaning. It alludes to the personal qualities of honesty, integrity and reliability.

It requires that the person possesses sufficient experience, scholarship, intellectual integrity and emotional maturity to act without "fear, favour or prejudice" - in other words, to be able to act independently.

The commission has found that Pikoli has all these qualities. In addition, the principled manner in which he resisted pressure from Mbeki and Mabandla with regard to the prosecution of Selebi testifies to his independence, integrity and courage.

The names that are being bandied about as his possible successor do not possess these qualities. This is of some national importance, since the future leadership of the country might well depend on the independence, integrity and courage of the person chosen to replace Pikoli. One of the first major decisions facing a new NDPP will be whether or not to continue with the criminal charges against Jacob Zuma.

Hopefully, this problem will not arise since Parliament will follow the recommendations of the Ginwala commission to reinstate Pikoli. Should this not happen it is probable that the president's decision will be overturned on review.

lAdvocate Nichola de Havilland is director at the Centre for Constitutional Rights.