Statement by former President Thabo Mbeki on allegations of NPA interference by the Executive

1 March 2024

As a general rule, I subscribe to the understanding that government functions on the basis of legal continuity. I therefore always defer to government to clarify policies and programmes adopted and implemented while I was in government.

Accordingly, it is with some reluctance that I respond to Ms Karyn Maughan's article:

"Long-awaited NPA report gives no answers on ANC govts alleged blocking of apartheid trials" published on News24 on February 21. However, failure to challenge some of what Ms Maughan has written would assist to perpetuate various falsehoods.

During the years I was in government, we never interfered in the work of the National Prosecuting Authority (NPA). The executive never prevented the prosecutors from pursuing the cases referred to the NPA by the Truth and Reconciliation Commission. I insist on this despite a 2021 Supreme Court of Appeal judgment which found, on the strength of uncontested submissions by former National Director of Public Prosecutions (NDPP), Advocate Vusi Pikoli, that the NPA "investigations into the TRC cases were stopped as a result of an executive decision" which amounted to "interference with the NPA."

I repeat, no such interference ever took place. If the investigations Adv Pikoli referred to were stopped, they were stopped by the NPA and not at the behest of the Government as alleged by the Advocate. There is no record of a single instance when the NPA stopped investigating and prosecuting any case on account of the so-called "executive interference" — at least not during the period 1999 - 2008.

There are some questions which the NPA must answer honestly.

Who in the executive instructed the NPA not to do its work? Will the NPA publish this 'instruction' which, presumably, will be in its archives? Why did the NPA accept and respect what would have patently been an illegal instruction?

Instead of propagating falsehoods, the NPA must investigate and prosecute the cases referred to it by the TRC.

I also recall that the same Pikoli who allegedly buckled under pressure of "executive interference" concerning the TRC cases, earned a lot of respect by portraying himself as an independent and principled NDPP who defied an "all too powerful" President Mbeki, who was supposedly hell-bent on stopping him from investigating and arresting the late former National Commissioner of Police, Jackie Selebi.

The question arises, what happened to his cherished independence and commitment to principle when he acquiesced to 'members of the executive' on the TRC cases?

In her article Ms Maughan also refers to so-called "back door amnesties".

What happened in this regard is that years after the dissolution of the TRC, some prisoners approached the Government arguing that they had been imprisoned for political activities — and were therefore political prisoners — but had not had the opportunity to apply for amnesty with the TRC.

The Government thought that rather than ignore these approaches, it should institute a process akin to what was pursued by the TRC Amnesty Committee to allow these prisoners to make presentations. After studying the submissions and using his Constitutional powers, the President would decide whether to grant amnesty to any of the prisoners.

Ultimately, this did not happen because the courts ruled that the intervention would violate the TRC Act. But there was nothing "back door" about the process. I addressed a joint sitting of the Houses of Parliament on this matter on November 21, 2007.

Conveniently, some people forget that the ANC was the principal architect of the Constitution of the Republic. During the years when I served as Deputy President and President of the Republic, l, together with my colleagues in Government, always bore this in mind and acted knowing that the Constitutional prescripts we helped to negotiate were binding on us.

There was never any Minister of Justice during those years who was ever authorised to instruct any NDPP to act in one way or another. No NDPP, including Pikoli, ever approached me to complain that he/she had been instructed by a Minister, or any other official, to violate the independence of the NPA as prescribed by the Constitution.

The NPA must demonstrate enough integrity by apologising for not processing the T RC cases, rather than engage in dishonourable behaviour of tryng to hide behind a fig leaf which is nothing more than pure fabrication.

Issued by the Office of former President Thabo Mbeki, 1 March 2024