ACDP calls for immediate reinstatement of Pikoli and parliamentary steps to protect independence of NPA

ATTENTION NEWS EDITOR
MEDIA RELEASE BY MR STEVE SWART, MP,
AFRICAN CHRISTIAN DEMOCRATIC PARTY
17th SEPTEMBER 2008
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PIKOLI – NPA: ACDP calls for immediate reinstatement of Pikoli and parliamentary steps to protect independence of NPA
*Says Ginwala Commission of Inquiry’s importance is if it also shows political interference in NPA.
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ACDP MP and spokesperson on Justice matters, Steve Swart, has called for the immediate reinstatement of Adv. Vusi Pikoli as National Director of Public Prosecutions following Nicholson’s judgment of last week.

“Whilst we appreciate that the judgment of Judge Chris Nicholson may be the subject of an appeal, his finding that there was a pattern of political interference in the National Prosecuting Authority (NPA) is disturbing and must be urgently addressed by parliament.

As the judge pointed out, “The independence of the Judiciary is directly related to, and depends upon, the independence of the legal professions of the NDPP. Undermining this freedom from outside influence would lead to the entire legal process, including the functioning of the Judiciary, being held hostage to those interests that might be threatened by a fearless, committed and independent search for the truth”.

The judge went on to say that “it is a matter of grave concern that this process has taken place in the new South Africa given the ravages it caused under the Apartheid order”.

Judge Nicholson found that there should be no relationship between the National Director and the Minister of Justice – “certainly insofar as his decisions to prosecute or not to prosecute anybody from the Commission of Police downwards” and that “the suspension of the National Director was a most ominous move that struck at the core of a crucial state institution.”

In view of this finding, it is clear that the Ginwala Inquiry is important should it highlight the President and the Minister of Justice’s political interference in the NPA but otherwise, in terms of Pikoli’s fitness to hold office, it has become irrelevant. How can it inquire as to whether there was a breakdown in relations between the National Director and the Minister of Justice resulting in Adv. Pikoli not being fit to hold the position of National Director, if there should not have been such a relationship in the first place.

The ACDP consequently calls for the immediate reinstatement of Adv. Pikoli as the National Director of Public Prosecutions.
As far as protecting the independence of the NPA in general is concerned, the Justice Portfolio Committee will be considering the implications of the Nicholson judgment later today. The ACDP will, at the very least, recommend that we increase our parliamentary oversight function to ensure that there is no political interference from the side of the Executive in the exercise of prosecutorial discretion of the NPA.

We also need to obtain legal certainty as to the nature of the relationship, if any, between the Minister of Justice and the National Director when the Minister exercises her oversight function over the NPA. We will also recommend the National Director in future be appointed in a similar manner as a judge, as recommended by Judge Nicholson in order to prevent what happened to Adv. Pikoli recurring and ensuring the independence of the NPA."
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For more information, contact
Steve Swart MP,
083 285 6290

Released by Libby Norton,
ACDP Media Attaché,
Tel - 07 25 70 6361
lnorton@parliament.gov.za

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NPA Amendment Bill and SAPS Amendment Bill

DEBATE READING
BY MR STEVE SWART, MP,
AFRICAN CHRISTIAN DEMOCRATIC PARTY
20th June, 2008

DEBATE STATEMENT: NATIONAL PROSECUTING AUTHORITY AMENDMENT BILL AND SOUTH AFRICAN POLICE SERVICES AMENDMENT BILL.
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ACDP MP, Steve Swart, has said in the House of Assembly during the NPA and SAPS Amendment Bills debates:

"The issue of the future of the Scorpions is about crime and accountability. It is about crime inasmuch as it has to do with the right of all South Africans to go about their lives in the secure knowledge that the law-enforcement agencies will take reasonable measures to protect them from the scourge of crime. It is about accountability inasmuch as it has to do with the fiduciary obligation of the state to act in the best interest of all its citizens.

The ACDP believes that government has breached this obligation by reversing its decision on the Khampepe Commission Report to further the narrow interests of the ruling party. By doing so, we believe that government has sacrificed the well being of all South Africans on the altar of political expediency.

The Executive and Parliament have constitutional constraints – the rule of law is a foundational value of the constitution – all law that is inconsistent with the principle of legality is liable to be set aside. It is a component of the principle of legality that government conduct must not be arbitrary. In other words, all government conduct must be rationally connected to a legitimate government purpose, failing which it will be arbitrary and hence unconstitutional.

It was common cause amongst all the parties in the Glenister application, including the government, that the Scorpions have been extremely successful in the fight against crime. Indeed I don't think anyone can dispute that fact. The ANC's decision to disband the Scorpions was not motivated that the Scorpions have been unsuccessful, but was rather motivated by the fact that the Scorpions have been too successful, particularly in its investigations of high profile ANC members.

Indeed ANC sec Gen Mr Gwede Mantashe admitted this much by stating that the ANC wanted the Scorpions disbanded because the unit is prosecuting its leaders.

Can we allow the interests of the ruling party to be put above the interests of all South Africans?

Whilst the matter is likely to end up in the Constitutional Court, our concern is that the Scorpions are bleeding to death at the moment.

We cannot afford to lose the expertise built up over years and at great cost to the taxpayer.

Whilst we will now proceed with public hearings, the uncertainty following the Polokwane conference as well the tabling of the amending legislation is resulting in the destruction of the unit.

56 members of the Scorpions have already left since April last year, with a further 47 indicating that they had applied for positions elsewhere. There can be no doubt that the unit is being decimated. They have been specifically trained at combating organised crime and we cannot afford to lose more of these highly-skilled members.

The acting head of the NPA, Adv Mpshe, has warned that the collapse of just a few Scorpions' cases could bring the South Africa's criminal justice system "into disrepute" and that "the reckless disbanding of the Scorpions could devastate the whole criminal justice system".

We must respond to this as a matter of urgency and cannot wait until the legislation is finalised or the Constitutional Court has ruled on the matter. By that time there will be no one left in the unit.

I appeal to the members of the ruling party –- let's urgently talk about the issue of relocating the Scorpions – let's consider real concern such as the following:

Does the SAPS have the capacity to accommodate the Scorpions?

By what stretch of the imagination would the SAPS be able to retain and attract other accountants and lawyers required for this unit? Surely it is very obvious that SAPS trade unions would not allow police officials to be paid the type of salaries necessary to attract such professionals?

How can the principle of constant prosecutorial oversight in investigations that is the cornerstone of the success of the Scorpions be maintained if the Scorpions are incorporated into the SAPS?

Even ANC MP Booi, as late as 18 March ANC MP stated that "the DSO has been able to build a capacity that the police have not been able to build in this regard." He goes on to say that "detectives do not have the kind of capacity to do that, but the Scorpions have that particular capacity."

The Khampepe Report categorically states that "the rationale for the establishment of the DSO is as valid today as it was at conception" and that "the DSO should continue to be located within the NPA".

Its conclusion could not be expressed in more forthright terms that "it is inconceivable that the Legislature will see fit to repeal the provisions of the NPA Act that relate to the activities and location of the DSO."

Surely this was the very reason for the creation of the Scorpions – and other units outside the SAPS – such as the Priority Crimes Litigation Unit (PCLU), the Asset Forfeiture Unit (AFU), the Specialised Commercial Crime Unit (SCCU), the Sexual Offences and Community Affairs (SOCA) Unit, the Witness Protection Unit (WPU). Remember we also set up the Financial Intelligence Centre, outside of the SAPS, to deal with the financing of organised crime and terrorist activities.

As the NPA's annual report indicates "the DSO's unique composition enables it to focus its resources and tackle complex crimes under one command…The DSO is an institution of paramount importance in South Africa's effort to disrupt trans-national and high-level organised crime. It should be nurtured, supported and celebrated."

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Mr Steve Swart, ACDP MP

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