Selective Prosecutions by the HAWKS & NPA – an offence to our constitutional state

Picture: Ayanda Ndamane/African News Agency/ANA

James Comey is a name that will continue to haunt Donald J. Trump throughout his presidency. The former director of the Federal Bureau of Investigation (FBI) was shockingly fired by Trump under a year ago. The firing shocked Washington and will forever leave a stain on the American president’s legacy.

Yet Comey was proving to be a greater thorn in Trump’s side than he was in the campaign of Hilary Clinton, Trump’s competitor for the White House. In a surprising move, Comey had announced that the investigation into what came to be known as the Clinton email server scandal was to be re-opened. He made the announcement eleven days shy of the election but was at pains to indicate that there was no meddling in the political process.

Criticism of Comey, for the timing of his announcement, came from across the political spectrum. What annoyed the Clinton campaign the most was the simple announcement of the re-opening of the investigation and its timing. Instead of giving a clear indication to the American people of what the case was, the announcement simply created the perception that there was a cloud hanging over Clinton’s head. 

John Podesta, Clinton’s campaign chairman, said at the time: “No one can separate what is true from what is not, because Comey has not been forthcoming with the facts…What little Comey has told us makes it hard to understand why this step was warranted at all.” In hindsight, we know that the cloud hanging over Clinton’s head eventually evaporated but Clinton loss the election.

It is purely speculative to suggest that Comey’s announcement swung the election in Trump’s favour even though Clinton won the popular vote. While Comey’s handling of the Clinton email server saga was the “official” reason given by the Trump administration for his firing, the President would a day later cause a storm in a tea-cup when he admitted, in a television interview, what the “real” reason was for Comey’s dismissal: he simply didn’t trust Comey. 

Today, Comey continues to haunt Trump because, ironically Comey’s predecessor at the FBI, Robert Mueller, has been tasked with investigating the role that Russia played in the US presidential elections. Comey had been investigating the link and that is why Trump did not trust him. CNN went as far as describing Comey’s firing as Trump’s nuclear option on the Russian probe.

Later, when relaying his response to his firing through sources, Comey is said to believe that a dinner he had with the newly inaugurated President Trump led to his downfall. At the dinner, held in the White House, Trump had asked the FBI director to pledge his loyalty to him as president. Twice, during the dinner, Trump asked for Comey’s loyalty and twice it was declined. As a known Republican, Comey, as the head of the FBI, pledged loyalty to the Constitution of the United States and the people of his country, rather than the leader of his party and the president of his country.

The independence of the FBI, which promoters of the constitution such as James Comey would defend vigorously, was recently portrayed in the movie Mark Felt: The Man Who Brought Down the White House. Based on the Watergate scandal, Felt was deputy-director of the FBI at the time and ensured that the media received the information when the White House had putting pressure on the FBI to kill the investigation. While not ruling out a hint of personal bitterness and the fact that Felt would have committed crimes involving the divulging of classified information, the deliberate interference by the White House, both to cover up the story and interfere in the independence of the FBI, spurned Felt into his action. 

As one of the oldest constitutional democracies in the world, South Africa can learn from the United States. Indeed, we may not agree with their politics and may even suggest that they have exported their brand of democracy to the rest of the world through cultural imperialism, the reality is that ours is a constitutional democracy with a constitution and an enshrined Bill of Rights. Some might view it as a curse, others as a blessing, but the writers of our Constitution relied heavily on the American example, though cautious not to adopt the presidential system.

Notwithstanding which side of the political spectrum one finds oneself, the announcement by James Comey of the Clinton investigation, eleven days shy of an elections that was a bitter contest, was unjustified. As indicated, many across the political spectrum, Democrats, Republicans and senior government officials, agreed that the timing of Comey’s announcement did the Bureau, never mind Clinton’s campaign, a grave injustice as it gave rise to the potential perception that there was a political agenda.

Yet Comey will not be remember for this mishap. He will be remembered for the one who stood by the Constitution and the people of the United States instead of pledging his loyalty to the leader of his party and the president. Comey, like Felt did during the seventies, defended, even to the extent of personal loss, the integrity and independence of the FBI and the execution of justice.

Emerging from a bruising Nasrec ANC National Conference, one can respect constitutionalists in South Africa like Dr Mathole Motshekga when he questions the timing of the raids and arrests done by the Hawks and the decisions to prosecute. As co-chairperson of a meeting between the Justice and Correctional Services and Police portfolio committees, he questioned why there was a delay in the arrests of the Estina Dairy farm case, for example.

The raids on the offices of the premiers of the Free State, in connection with the Estina Dairy Farm, and the North West questions whether soon there would be raids on the premiers’ offices in Mpumalanga and KwaZulu-Natal. After all, these formed part of the so-called “premiers’ league”, who lost at Nasrec. If we read anything into the book published in 2017 “Eerie Assignment – A Journalist’s nightmare in Mpumalanga by Sizwe Sama Yende, we should not be surprised of these actions by law enforcement agencies. 

What this indicates to us, as South Africans, is not an independence and loyalty to the Constitution by our criminal justice system but rather, as we saw in the days of the Scorpions, a wait and see approach to what faction emerges in the ANC and therefore loyalty only to self.

State entities (now under President Ramaphosa as under Zuma) continue, to be used for factional battles in the ANC and South Africa, together with our constitutional democratic institutions, is weakened. While we must welcome investigations in the Estina Dairy Farm project and the IT tender in the North West, we continue to await for updates on other politically connected cases and investigations into allegations such as the Gauteng Shared Services Centre and so called connection the “Alex Mafia Group”, Oilgate 1 & 2 of the infamous Imvume Management and cosy relationship with the former State President, Kalema Motlante, the Roux Shabangu – SAPS HQ lease debacle, the PetroSA Block 9 project and the circumstances surrounding the death of January Masilela, among others. Has constitutional state, one thing must be emphatic, what is good for the goose must also be good for the gander. The Zuma years had rotten apples, but so did the Mbeki years and so did the Mandela years. 

One of the reasons why the Scorpions was disbanded was because of the perceived rivalry between the unit, based in the National Prosecuting Authority’s domain, and the South African Police Service. The evidence suggests that the rivalry between the, now, Hawks, in the SAPS and the NPA continues. 

Yet this rivalry it would seem is a cover up for inaction or selective pursuance of cases. What we need is for the Hawks and for the NPA to take their cue from people like James Comey and Mark Felt and place loyalty to the Constitution of the Republic and the people of South Africa above their loyalty to political leaders; even if this means bringing down a sitting president. 

Wesley Seale is a PhD Candidate at Beijing University in China