Blame lies with the executive
Paul Ngobeni, Sunday Independent, Johannesburg, 8 June 2014
President Jacob Zuma certainly does not need nor deserve the current
controversy surrounding the appointment of National Director of Public
Prosecutions (NDPP) Mxolisi Nxasana and the alleged denial of his security
clearance.
In the past, such controversy would have been easily dismissed as a ploy
emblematic of the tactics used by anti-Zuma forces, including elements of
so-called civil society.
We know that forces opposed to Zuma have adopted a media-savvy strategy of
picking only the high-level appointments in the Zuma administration and
portraying them as reflective of Zuma's bungling, incompetence and, at
worst, corruption.
Inevitably, the tactics involve launching court applications to have some
appointments invalidated. Litigation takes place in the real courts and in
the court of public opinion.
Typically, the public gets a constant drumbeat of negative information about
the public official while the case is commented upon extensively, wrongly
and in a skewed fashion, unfairly subjecting the individual to the torture
of public condemnation and violating his or her right to be presumed
innocent until proven guilty.
But the current crisis involving Nxasana defies such beguilingly simplistic
characterisation. The blame for the incompetent handling and the unnecessary
constitutional crisis lies squarely on the shoulders of members of Zuma's
executive.
Zuma deserves better support and service than he has received from the
ministers involved. Such incompetence makes the task of ushering in a
capable developmental state that can give effect to the national plan appear
like an impossible dream.
It is disconcerting that justice ministry officials appear to conflate the
issue of whether an NDPP is "fit and proper" with the issue of his security
clearance.
These are not the same. Security clearance is simply an official document
indicating the degree of security competence of a person.
This reflects a person's ability to act in such a manner that he does not
cause classified information or material to fall into unauthorised hands,
thereby harming or endangering the security or interests of the state.
Security competence is normally measured against certain criteria focusing
on his susceptibility to extortion or blackmail, amenability to bribes,
susceptibility to being compromised due to compromising behaviour and
loyalty to the state or institution.
Measured against these standards, it is absurd to suggest that a murder
charge which resulted in an acquittal could conceivably affect a person's
security competence.
In similar vein, a killing committed when Nxasana was a teenager, long
before he qualified to be a lawyer and before he was declared fit and proper
by a court during the attorney admission process, cannot be grounds for
questioning his fitness now.
Nxasana's appointment as NDPP was supposed to be simple and uncontroversial.
Zuma appointed Nxasana in accordance with Section 179 of the constitution
based on his determination that Nxasana met all the NDPP qualifications set
forth in Section 9 of the NPA Act.
This requires that - in addition to possessing the requisite legal
qualification and being a South African citizen - an NDPP must be a "fit and
proper person, with due regard to his or her experience, conscientiousness
and integrity to be entrusted with the responsibilities of the office
concerned".
Significantly, neither the constitution nor the act expressly stipulates a
security clearance as a job requirement.
Once appointed, Nxasana enjoys security of tenure which is important to
prosecutorial independence. In terms of section 12(6) of the NPA Act, there
are only four permissible grounds for dismissing the NDPP from office,
namely, misconduct; continued ill-health; incapacity to carry out his duties
of office efficiently; or that he or she is no longer a fit and proper
person to hold the office concerned.
Ministers are not free to invent other grounds for removal - no minister may
circumvent the provisions of the statute by pressuring the NDPP into
resigning on the basis of a denial of security clearance. After all, only
Parliament makes the final decision about whether an NDPP can be removed
from office.
Blindly engrafting the requirement of security clearance to the NDPP
appointment process is constitutionally suspect.
Given that the NDPP is guaranteed independence and is in theory not a member
of the security and intelligence community, why should he be subject to the
requirement to obtain security clearance from the requisite intelligence
community?
Do the broad powers granted to the NIA to "issue, degrade, withdraw or
refuse a security clearance" in respect to prosecutors not pose a threat to
their independence?
What prophylactic measures has the legislature put in place to prevent
intelligence agencies with such sweeping powers from interfering with
prosecutorial independence and security of tenure by unlawfully threatening
to degrade or withdraw a security clearance?
I suspect that without proper safeguards similar threats to independence can
extend to judges, public protectors and other Chapter 9 institutions. Those
who use the security clearance issue as a battering ram against Nxasana must
tread carefully.
The justice minister was skating on thin ice and without any lawful basis
when demanding Nxasana's resignation based solely on an alleged security
clearance issue.
Assuming, for the sake of argument, that Nxasana was required to obtain a
security clearance, it is clear that this aspect was badly mishandled,
replete with procedural improprieties likely to be declared unconstitutional
if challenged in court.
The National Strategic Intelligence Act ("the NSIA") has clear procedures
for security clearance - these require the applicant to complete a vetting
form, which Nxasana presumably did, and following which he was subjected to
screening by the NIA, which included polygraph testing as well as accessing
personal records and relevant information.
Section 2A(6) of the NSIA empowers the head of the NIA to "after evaluating
the information gathered during the security screening investigation, issue,
degrade, withdraw or refuse a security clearance".
If Nxasana was indeed denied such security clearance, it was incumbent upon
the head of the NIA to issue a written decision specifically informing him
of the reasons for the denial.
Apparently that was not done - the decision was conveyed orally and through
the justice minister. The latter compounded the mistake further by demanding
that Nxasana resign even before he had been served proper notice of the
denial and even before he could exercise available administrative remedies,
especially the right to appeal.
Section 2A (8) of the NSIA provides that a person whose security clearance
has been refused, withdrawn or degraded may in the prescribed manner appeal
to the "minister responsible for the relevant National Intelligence
structure".
The justice minister had no right to usurp power he did not have or to
circumvent Nxasana's rights including appeal to the state security minister.
By purporting to do so, the justice minister further strengthened Nxasana's
case even against the NIA. Under Section 2A (8) of the NSIA, Nxasana had 60
days within which to lodge an appeal which period is measured "from the date
on which the decision was made known by the head of the relevant National
Intelligence structure" although the state security minister has discretion
to permit a later date filing.
By interposing himself between the head of the NIA and Nxasana and by not
following due process, the minister contaminated the process and prevented
proper notice from being served lawfully upon Nxasana.
This transgresses the terms of the statute and violates Nxasana's
constitutional rights.
The statute provides that an appeal from the denial of security clearance
must be submitted to the state security minister, who has unbridled
discretion to confirm, set aside or substitute the adverse decision.
One would have expected the ministers responsible to be vigilant and to
scrupulously comply with all laws given that the appointment of Nxasana
followed in the wake of the hotly litigated appointment of Simelane. Sadly,
that was not done.
The justice minister grossly misinterpreted the various statutes and
policies applicable to security clearances, including the Minimum
Information Security Standards approved by the cabinet in December 1996.
The latter provides for the screening authority (the NIA) to investigate and
advise on the security competence of a person on the basis of prescribed
guidelines. Thereafter the screening authority "will merely make a
recommendation regarding the security competence of the person concerned to
the head of the requesting institution, and this should in no way be seen as
a final testimonial as far as the utilisation of the person is concerned"
(Paragraph 9).
The policy provides further as follows: "10.2: Notwithstanding a negative
recommendation from the screening authority, for whatever reason, the head
of the institution may still, after careful consideration and with full
responsibility, use the person concerned in a post where he/she has access
to classified matters if he/she is of the opinion that the use of the person
is essential in the interest of the RSA or his/her institution, on the
understanding that a person satisfying the clearance requirements is not
available."
A denial of a security clearance does not automatically require denial of
employment or the removal of a duly appointed NDPP.
Unfortunately, the self-imposed shortcuts adopted by the justice minister
have invited all kinds of speculations and accusations of political agenda.
The NIA's handling of the Nxasana matter has troubling implications for the
principles of rule of law and separation of powers. Regarding the murder
charges, both the State and Nxasana had their day in court which rendered a
verdict of acquittal for Nxasana.
Intelligence agencies do not have a licence to impugn the court judgment
under the guise of security clearance investigation.
Moreover, in the case of acquittal, there is double presumption in favour of
the accused.
First, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a competent court of
law.
Second, the accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by the trial
court.
I am by no means denying that in some cases evaluating an arrest record,
information indicating acquittal, dropped charges, or case dismissal does
not negate the significance of the underlying conduct.
I agree that in security competence, determinations are made on available
information concerning a person's conduct and actions rather than the legal
outcome of a criminal proceeding.
A judgment of acquittal does not establish that the acts constituting the
offence charged were not committed by the defendant; it means only that they
were not proved beyond reasonable doubt.
In some cases, defendants who were clearly guilty of the offences charged
have been acquitted when their confessions were excluded for insufficiency
of a legal foundation for their admission, where positive evidence of their
guilt was excluded because it had been obtained illegally, and so forth.
However, there is an unacceptable risk of miscarriage of justice when the
NIA is allowed to ignore court verdicts and to conduct a post-mortem
re-evaluation of whether a person acquitted by a court was really innocent
after all.
This danger is heightened when the NIA operates without clear guidelines or
any rules restricting its reporting and reliance on obsolete information.
The system is open to abuse by security agencies who may be tempted to
selectively and arbitrarily use records of arrest resulting in dismissals
and other non-conviction type records.
This is tantamount to granting the security agency veto powers over the
appointment of senior government officials.
- Ngobeni is a member of the Progressive Professionals Forum, Western Cape
From:
http://www.iol.co.za/sundayindependent/blame-lies-with-zuma-s-executive-1.17
00158#.U5Qz_fmSyD8
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