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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ACDP questions involvement of MP's investigated by Scorpions

ATTENTION NEWS EDITOR **IMPORTANT **
MEDIA RELEASE BY MR STEVE SWART, MP,
AFRICAN CHRISTIAN DEMOCRATIC PARTY
22nd May 2008

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SCORPIONS HEARINGS – ACDP questions involvement of MP's investigated by Scorpions;
commends input by National Prosecuting Authority.

Following the first day of public hearings into the future of the Scorpions, ACDP MP and spokesperson on justice matters, Steve Swart, is questioning the involvement of MP's investigated by Scorpions and commends input by National Prosecuting Authority:

"The ACDP raised various issues during the first day of public hearings into the future of the Scorpions. We are awaiting a ruling from the joint chairpersons as to whether Members of Parliament who have been or are being investigated by the Scorpions should sit on the Committees dealing with the very future of the unit investigating them. In our view there is a clear conflict of interest and such members should be excused from the Committees.

We also raised our concerns that the bills under consideration exclude prosecutors from the new Directorate for Priority Crime Investigation within the SAPS. The principle of constant prosecutorial oversight in investigations formed the cornerstone of the success of the Scorpions. This crucial aspect will be lost if the bills in their present form are accepted, and flies in the face of the State President's commitment earlier this year that the "continued involvement of the prosecuting authority will ensure that the operations of the [new]specialised unit are both prosecution and intelligence driven".

The most compelling submission was by the National Prosecuting Authority which, whilst committing itself to ensure that government policy is implemented as successfully as possible, stated unambiguously that the bills "fail to set out in a coherent fashion a legal rationale, legislative aim, reasonable objectives, and sufficiently underlying reasoning and explanations for their foundation."

This view supports the ACDP's submission, to be presented on Thursday that the Bills are inconsistent with the principle of legality in that they do not have a rationale connection to a legitimate government purpose, especially considering the high success rate of the Scorpions, are thus unconstitutional and liable to be set aside.

It is outrageous that the Scorpions are being disbanded, in our view to protect senior ANC members from investigation, particularly considering the escalating and highly complex nature of organised crime. We, as parliamentarians, must be mindful of the Khampepe Commission of Inquiry that concluded "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."

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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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MEDIA RELEASE - No Constitutional Requirement for Scorpions' Disbandment

MR STEVE SWART, MP,
ACDP - AFRICAN CHRISTIAN DEMOCRATIC PARTY 14th February 2008

ACDP TABLES PARLIAMENTARY QUESTION DEMANDING ANSWERS ON SCORPIONS * SAYS NO CONSTITUTIONAL REQUIREMENT FOR DISBANDMENT.
ACDP looks forward to Scorpions Annual Report in Parliament.
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ACDP, MP and Spokesperson on Justice and Constitutional matters, Steve Swart, this morning formally tabled a Parliamentary question to be answered by the Minister of Safety and Security on Wednesday 27th February 2008, requesting the constitutional basis that the Minister relies upon for justifying the decision to disband the Scorpions.

“The Minister has argued that the reason why Cabinet decided to disband the Scorpions and incorporate it into the SAPS was that the Constitution required that there must be “a single police force”. This argument was rejected by the Constitutional Court in 2002 as well as the Khampepe Commission (relying on that Constitutional Court judgment), the report of which was accepted by Cabinet in June 2006.

It is patently clear that the decision to disband the Scorpions is not based on any constitutional requirement, but rather on a political decision to rid South Africa of a very effective crime-fighting unit that has embarrassed the ruling party by investigating and convicting high profile leaders.

The Minister’s most recent explanation that the merging of the Scorpions into a new unit in the SAPS in order to “change for the better” the fight against organized crime, is outrageous given that their present success rate is over 80%. Furthermore, how would the investigation into National Police Commissioner Jackie Selebi have been conducted had it not been that the Scorpions were located outside the police service? This is particularly so, following the heavy-handed arrest and spurious charges brought by the SAPS against Scorpions Gauteng boss, Adv. Gerrie Nel, in an obvious attempt to derail the Selebi investigation.

The Minister must explain whether he persists with the “single police force” constitutional argument and if not, what is the basis for this reckless decision.

The ACDP is determined to hold the Executive to account for this decision, notwithstanding that the majority party has effectively ignored Parliament by announcing the disbanding of the Scorpions as a fait accompli.

The ACDP, together with other parties, will be exercising its oversight function next week when the National Prosecuting Authority (NPA) presents its annual report on Wednesday 20th February, in the Justice Portfolio Committee. The ACDP, when it raised the matter in the Justice Portfolio Committee yesterday, was given the assurance that the Scorpions would be present, albeit reporting under the NPA.

All indications are that the glowing success of the combination of prosecutor and investigator, which is the Scorpions, will be shown to have continued in the past financial year and this is sure to further highlight the criminal foolishness of the decision.”

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Electoral System and Accountability: Options for South Africa

ADDRESS BY STEVEN SWART ACDP MP
AT THE CONFERENCE ON
ELECTORAL SYSTEM AND ACCOUNTABILITY: OPTIONS FOR SOUTH AFRICA
HOSTED BY THE KONRAD-ADENAUER-STIFTUNG
AND THE ELECTORAL INSTITUTE OF SOUTHERN AFRICA (IESA)

TUESDAY 28 AUGUST 2007
VINEYARD HOTEL, CAPE TOWN

Master of Ceremonies, Dr Werner Boehler, fellow MP's, MPL's, foreign guests, representatives of academic institutions and the media, may I firstly thank the Konrad Adenauer Stiftung and the Electoral Institute of Southern Africa for hosting this event and for the kind invitation to participate on this panel.

The South African Constitution determines that our 400 members of parliament must be elected in terms of an electoral system that "results in general, in proportional representation". There is a worldwide trend towards such systems as they are regarded as being eminently fair and reflect the will of the voters most accurately. They are particularly useful in emerging democracies as they are inclusive.

Our present system is a two-tier, one ballot, with nine multi-member constituency (200 representatives) compensatory system. It is not a straight PR system as we have nine MMC's and one national list.

The ACDP is on record as supporting the retention of the proportional list system for the immediate future. We appreciate concerns expressed regarding accountability and are thus prepared to consider other electoral models in the long-term as our democracy deepens and becomes more stable. We, too, are opposed to floor-crossing and joined the UDM and the IFP in the Constitutional Court battle. We support electoral reform to do away with floor-crossing in its entirety.

James and Hadland have identified four values that are inherent in our constitutional order and electoral system; namely fairness, inclusivity, simplicity and accountability.

Tom Lodge summarised each as follows:
"Fairness relates to those aspects of the system that ensure that every vote is of equal value and that the parties are treated fairly in their representation in parliament. Inclusivity refers to the need for a system to be as all-embracing as possible in terms of drawing in groups across the political spectrum to induce shared goals and shared values between them. The system should also be inclusive through ensuring that all groups, however, they may be defined, are represented within legislatures. The system should be simple, open and easy to understand."

INCLUSIVITY

There can be no doubt that the present system is inclusive. Rather have far left wing and far right wing representatives in parliament than throwing stones outside parliament. Small parties have the best chance of representation since all votes cast for them country-wide are taken into account.

It is significant that the Constitutional Court in over ruling the Electoral Court's decision and allowing the ACDP to contest last year's municipal elections in Cape Town emphasised the principle of inclusivity and enfranchisement as opposed to exclusion and disenfranchisement.

It would be premature in our nation's development and, with a history of exclusion, it is all the more necessary to retain maximum representation of voices. With all the more fractures in our social fabric, and lack of social cohesion - as indicated in the succession battle - no sector, be it demographic minorities or political minorities should feel excluded from the process. The principle of inclusivity is thus almost a guarantee of political stability - particularly where certain sectors feel more and more marginalized.

SIMPLICITY

The system is simple - with voters understanding the system/ballot paper well and the percentage of spoilt votes has been low. The one comment in our experience has been the confusion between the African Christian Democratic Party and the United C hristian Democratic Party. The IEC in our view should not have allowed the registration of a similar named party that has led to confusion with voters and many spoilt ballots.

Much has been said regarding accountability. However, I would like to touch on the core values of inclusivity and simplicity. During the ETT Review Roundtable in 2002, an elections administrator commented that the local government elections were anything but simple, and were in effect ‘extremely difficult'. He indicated that they struggled in terms of voter education to explain the system to people and that in his experience the majority of people still do not understand the combination system used, and that this contributed to the very low voter turn-out during the local government elections.

As a practical example, we, as the ACDP, were obliged to approach the Constitutional Court last year after we were excluded from contesting Cape Town after a technical hitch in the registration process. Regrettably, neither the IEC nor five Electoral Court judges were prepared to assist us, and we were obliged to approach the Constitutional Court at great cost and on an extremely urgent basis. The Court, disagreeing with both the IEC and the Electoral Court, held that foundational constitutional values of section 1 require a court to seek " to promote enfranchisement rather than disenfranchisement and participation rather than exclusion." It held in fact that the ACDP complied with all statutory provisions of Municipal Electoral Act, 27 of 2000. I'm aware of various other parties that were disqualified at the registration stage.

The point is that our two - tier system with SMC's and a national compensatory closed list at local government level is quite complex, and the majority report's proposed MMC would require 69 separate constituency lists (300 names) and a national list of 100 names. The report states that " (T)o achieve the same results as with the current system would require careful planning on the part of political parties but there is no inherent reason why the result could not be as successful."

We need to take care that we do not over compensate for accountability and risk simplicity and inclusivity.

FAIRNESS

The system is fair, which is a fundamental requirement of legitimacy. There is a direct relationship between support gained and seats allocated.

An election must be conducted on the basis of rule s and procedures that are fair and just which will form the basis of the electorate's acceptance of an outcome. The rule of natural justice must be applied.

An administrative body must act fairly, implying acting within the rules of natural justice ie giving an interested party an opportunity to be heard before a decision is made and the decision maker being unbiased.

The ACDP trusts that the requirements of "enfranchisement rather than disenfranchisement and participation rather than exclusion" as laid down by the Constitutional Court in our matter will be followed by the IEC when considering alleged non-compliance with electoral provisions.

ACCOUNTABILITY

As we have heard today, the main criticism of our proportional list system is the lack of accountability of MP's to constituencies with MP's being accountable to their party and not to the electorate. The party then has to account to the electorate for its performance and that of its MP's.

There should however be a duality of accountability - MP's being accountable to both one's political party and to one's voters. We agree that the link between members and voters must be improved to ensure that people do not feel alienated. The question is how?

In the Justice Portfolio Committee, we are at present considering the Constitution Thirteenth Amendment Bill and the Cross-Boundary Municipalities law Repeal and Related Matters Amendment Bill to deal with the consequences of the Constitutional Court challenge by Matatiele Municipality resulting in the striking down of the Constitution Twelfth Amendment Act 2005 and the Cross-Boundary Municipalities Laws Repeal and Related Matters Act 23 of 2005 du e to a failure by the Kwazulu- Natal Legislature to hold public hearings on the matter.

Matatiele residents felt excluded from the process and had to go to the Constitutional Court to have their objections heard. How do they now hold their elected representatives at Provincial and National (NCOP) level accountable for the decisions taken and to be taken following new public hearings to be held, or do they have to wait for the next election.

Would the proposed model result in greater pressure being brought to bear on elected representatives? In this case elected representatives in the Kwazulu- Natal provincial legislature did not hold public hearings on a matter relating to provincial boundaries being redrawn.

It was common cause during the ETT Review Roundtable that an electoral system of whatever kind cannot solve the problem of accountability. It can at best contribute to it in some way.

As Adv Pansy Tlakula, the Chief electoral officer at the Electoral Commission has said, "an electoral system on its own cannot make elected representatives accountable. At best, it can be a conduit through which the people can hold their elected representatives accountable."

Dr van Zyl Slabbert made an important point when he said, "We soon realised that we were not going to sacrifice the benefits of the current electoral system in pursuit of the ideal concept of accountability, because we do not know what that is."

What should we learn from Khutsong where constituency -elected ANC ward councillors have been forced out of the West rand township. Surely violence can never be condoned - but was this not a case of disgruntled voters whose desire to choose to which province they would belong was not being considered at provincial and national representatives.

As far as the ACDP is concerned, we are familiar with SMC's and PR and the MMC's at national level (regional representation). We would need to explore the implications of any theoretical model to ensure that it resulted in the same representation we enjoy under the present system to ensure INCLUSIVITY. We need to be very careful that inclusivity and diversity are not traded off against accountability.

Smaller parties or parties representing special interests must be catered for in a system that ensures that all votes cast country-wide are taken into account.

The majority report of the Electoral Task Team indicated that the practical effect of the proposed model of multi-member constituencies (nine provincial constituencies expanded to some 69 to elect 300 seats) with a compensatory closed national list providing 100 seats, will result in the same representation of smaller parties.

If the proposed model strikes the balance between accountability and core values of fairness, inclusivity and simplicity, then this is indeed a model that warrants serious consideration.

For the immediate future, however, the ACDP believes that the status quo should be retained.

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