The President should appoint the NDPP, not the ruling party

Adv Vusi Pikoli may feel that his integrity and the principle of prosecutorial independence have been vindicated, but government's formal affirmation of that principle as part of its settlement with the former NDPP is no victory for constitutionalism and the rule of law (see here).

Adv Pikoli's astute defence of prosecutorial independence to date has been admirable. It would be uncharitable not to recognise that he was probably told on the eve of his application for his dismissal to be reviewed and set aside that government would continue to appeal if he won and that his reinstatement does not accord with the wishes of the President, who has the Constitutional power to appoint the NDPP.

But that leaves us in the lamentable position that an NDPP who has proven his independence is now out of office for good because of political preference. Neither does it bode well that the President is consulting ANC leaders on his intended appointee. It is the President of the Republic who should be making this choice, not the ruling party.

The President who dismissed Adv Pikoli - President Motlanthe - recognised the dangers at the time, and proposed that the JSC should appoint the NDPP. The Parliamentary Ad Hoc Committee that affirmed the dismissal - against the wishes of the opposition parties - proposed across party lines in February this year that Parliament should make the appointment.

The unexpected settlement with Adv Pikoli now makes a Presidential appointment inevitable. We call on the President and the Justice Minister to make an executive, and not a party political choice.

Statement issued by Dene Smuts, MP, Democratic Alliance shadow minister of justice and constitutional development, November 23 2009

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