THE latest intrigues about the abuse of intelligence services are not just tragic, they pose a serious risk to our democracy. Successive governments under both presidents Thabo Mbeki and Jacob Zuma have involved our national intelligence services in fighting battles within the African National Congress (ANC). In Mbeki’s term the issue was that of his perceived rivals — Mathews Phosa, Tokyo Sexwale and Cyril Ramaphosa — being accused of plotting against him.
Then we had Zuma, the presidential candidate, getting access to national intelligence information to discredit his corruption charges as a political plot to prevent his ascent to the Presidency.
The latest saga extends the abuse to include perceived threats to the government by citizens who are seen as critics of the governing party, or its competitors in the next election. Citizens who are seen as critics are labelled agents of foreign, western powers. The risks this abuse poses to our democracy is significant enough for us as citizens to stand up and demand a stop to it.
First, the national intelligence services should be fully engaged in assessing the real risks to the security of the state — not that of the governing party. Our borders are insecure and our natural resources are being destroyed, as evidenced by the more than 500 rhinos killed this year alone by syndicates who act with impunity. Foreigners stream into our country without any restraint because of poor border policing. There are issues of crime intelligence to stem violent crime — especially in poor communities — that should be priorities instead of political intrigues.
Second, the quality of the intelligence reports themselves speak of lack of professionalism. How does it happen that our intelligence services do not know about the nature of the National Endowment for Democracy and its office holders? How can we feel safe with such blatant lack of knowledge about international affairs?
Third, the political culture that sees no distinction between the governing party, the president, the government and the state is a threat to the pillars of our constitutional democracy of human dignity, equality and freedom. Ours is a multi-party democracy that should encourage the freedom of association, expression and the free flow of ideas. The discrediting of citizens as agents of foreign powers violates their rights and undermines their responsibilities as active citizens who should hold those in public office accountable. Criminalising political competition poses a serious risk to our democracy.
Fourth, the abuse of national intelligence also undermines our international standing as a constitutional democracy on a continent that, with a few notable exceptions, has yet to demonstrate its capacity to sustain vibrant competitive multi-party democracies. The difficulties of running competitive credible elections and transitions from one party to another on our continent arise from the unwillingness of incumbent governing parties to accept the possibility of change.
We have seen it in Kenya’s 2007-08 elections. We saw it in Zimbabwe’s successive elections culminating in this year’s elections that could not be described by Southern African Development Community election monitors as "free and fair" but "free and peaceful." "Free and fair" is apparently too high a bar to reach. We seem to settle for only being grateful that there was peace. Are we, as African citizens, content to lower the bar when it comes to our expectations of the conduct of those in political office?
South African citizens opted for a constitutional democracy because we want to aim high. We believed — and still do — that our country is capable of becoming a great society in every sense of that word. Ours was to be a place that would be known for its respect for human dignity, promotion of equality of all in the law and freedom for all. Invading the privacy of citizens to pursue party political interests goes against the very spirit of our freedom struggle and the ideals that so many of our heroes of the struggle fought and died for.
Abuse of intelligence services is a serious form of corruption and a wasteful expenditure of resources that should be building schools and homes, running efficient and effective health services and protecting citizens from crime. We as citizens need to stand firm against the erosion of our constitutional democracy and insist on holding those responsible accountable. Our society deserves better.
It is up to each one of us to stand together to defend and promote integrity in public service. It is in our hands to stop this abuse.
Source: Business Day
Showing posts with label Integrity. Show all posts
Showing posts with label Integrity. Show all posts
Tuesday, August 20, 2013
Friday, October 5, 2012
Democratic Alliance v President of South Africa and Others
On Friday 5 October 2012, the Constitutional Court gave judgment in a case about whether the appointment of Mr Simelane as National Director of Public Prosecutions (NDPP) by the President of the Republic was constitutionally valid. In an application brought by the Democratic Alliance (DA), the North Gauteng High Court had held that the President’s decision was indeed valid, but the Supreme Court of Appeal set aside the decision as having been irrational. The Minister for Justice and Constitutional Development (Minister) sought to appeal against this decision.
Mr Simelane had given evidence before the Ginwala Commission of Enquiry concerning the conduct of the then NDPP, Mr Vusi Pikoli. The Report of the Ginwala Enquiry had severely criticised Mr Simelane’s approach to and evidence before that Enquiry and the Public Service Commission (PSC) had recommended that disciplinary proceedings be instituted against him. The Minister rejected the recommendations of the PSC and advised the President to ignore the findings of the Enquiry and Mr Simelane’s evidence before the Enquiry in the process of appointing Mr Simelane as NDPP. The President did not take these matters into account in making his decision to appoint Mr Simelane.
In a unanimous judgment (subject to a qualification by Zondo AJ in relation to one paragraph of the judgment), Yacoob ADCJ reached a number of legal conclusions:
a. The requirement that the National Director of Public Prosecutions must be a fit and proper person for appointment with due regard to his conscientiousness and integrity was not a matter to be determined according to the subjective opinion of the President. It was rather a jurisdictional pre-requisite to be determined objectively.
b. The requirement of rationality obliges courts to engage in an evaluation of the relationship between the means employed to reach a decision on the one hand, and the purpose for which the power to make the decision was conferred, on the other.
c. Each and every step in the process of reaching the decision must be rationally related to the outcome.
d. A failure to take into account relevant material that colours the entire process with irrationality will render the decision irrational.
e. The rationality test is the least invasive form of legal scrutiny and its applicability in respect of Executive decisions flows from an acceptance and recognition of the separation of powers, not the converse.
f. The purpose of the conferral of the power to appoint the National Director of Public Prosecutions on the President was to ensure that the appointee was sufficiently conscientious and had the integrity required to be entrusted with the responsibilities of the office.
g. Dishonesty is inconsistent with the conscientiousness and integrity required for the proper execution of the responsibilities of a National Director of Public Prosecutions.
The Constitutional Court evaluated Mr Simelane’s evidence at the Ginwala Enquiry and concluded that the evidence was contradictory and, on its face, indicative of Mr Simelane’s dishonesty and raised serious questions about Mr Simelane’s conscientiousness, integrity and credibility. The failure to take this into account would, absent acceptable reasons for not doing so, not be rationally related to the achievement of the purpose of appointing a person of conscientiousness and integrity as NDPP. The Constitutional Court held further that the reasons the Minister had provided for withholding this evidence from the President was insufficient,and that the failure by the President to take into account this evidence without more was irrational in the sense of not being rationally related to and inconsistent with the purpose of appointing, as NDPP a fit and proper person with due regard to his conscientiousness and integrity.
The President’s decision was set aside and the Minister was ordered to pay the costs of the DA, including costs of two counsel.
In a short concurring judgment, Zondo AJ agreed with the conclusion, most of the reasoning and order in the main judgment. However, he took the view that, on the facts, it was not necessary to express a definitive view on whether or not a statutory body such as the PSC was required to have given Mr Simelane an opportunity to be heard before it reached its conclusions and made its recommendations to the Minister. This was because the Minister, who was the authority in whom the power to institute a disciplinary hearing into Mr Simelane’s conduct vested, did give Mr Simelane the opportunity to be heard.
Source: Polity
Mr Simelane had given evidence before the Ginwala Commission of Enquiry concerning the conduct of the then NDPP, Mr Vusi Pikoli. The Report of the Ginwala Enquiry had severely criticised Mr Simelane’s approach to and evidence before that Enquiry and the Public Service Commission (PSC) had recommended that disciplinary proceedings be instituted against him. The Minister rejected the recommendations of the PSC and advised the President to ignore the findings of the Enquiry and Mr Simelane’s evidence before the Enquiry in the process of appointing Mr Simelane as NDPP. The President did not take these matters into account in making his decision to appoint Mr Simelane.
In a unanimous judgment (subject to a qualification by Zondo AJ in relation to one paragraph of the judgment), Yacoob ADCJ reached a number of legal conclusions:
a. The requirement that the National Director of Public Prosecutions must be a fit and proper person for appointment with due regard to his conscientiousness and integrity was not a matter to be determined according to the subjective opinion of the President. It was rather a jurisdictional pre-requisite to be determined objectively.
b. The requirement of rationality obliges courts to engage in an evaluation of the relationship between the means employed to reach a decision on the one hand, and the purpose for which the power to make the decision was conferred, on the other.
c. Each and every step in the process of reaching the decision must be rationally related to the outcome.
d. A failure to take into account relevant material that colours the entire process with irrationality will render the decision irrational.
e. The rationality test is the least invasive form of legal scrutiny and its applicability in respect of Executive decisions flows from an acceptance and recognition of the separation of powers, not the converse.
f. The purpose of the conferral of the power to appoint the National Director of Public Prosecutions on the President was to ensure that the appointee was sufficiently conscientious and had the integrity required to be entrusted with the responsibilities of the office.
g. Dishonesty is inconsistent with the conscientiousness and integrity required for the proper execution of the responsibilities of a National Director of Public Prosecutions.
The Constitutional Court evaluated Mr Simelane’s evidence at the Ginwala Enquiry and concluded that the evidence was contradictory and, on its face, indicative of Mr Simelane’s dishonesty and raised serious questions about Mr Simelane’s conscientiousness, integrity and credibility. The failure to take this into account would, absent acceptable reasons for not doing so, not be rationally related to the achievement of the purpose of appointing a person of conscientiousness and integrity as NDPP. The Constitutional Court held further that the reasons the Minister had provided for withholding this evidence from the President was insufficient,and that the failure by the President to take into account this evidence without more was irrational in the sense of not being rationally related to and inconsistent with the purpose of appointing, as NDPP a fit and proper person with due regard to his conscientiousness and integrity.
The President’s decision was set aside and the Minister was ordered to pay the costs of the DA, including costs of two counsel.
In a short concurring judgment, Zondo AJ agreed with the conclusion, most of the reasoning and order in the main judgment. However, he took the view that, on the facts, it was not necessary to express a definitive view on whether or not a statutory body such as the PSC was required to have given Mr Simelane an opportunity to be heard before it reached its conclusions and made its recommendations to the Minister. This was because the Minister, who was the authority in whom the power to institute a disciplinary hearing into Mr Simelane’s conduct vested, did give Mr Simelane the opportunity to be heard.
Source: Polity
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