"THAT all involved acted in good faith and in what they perceived to be the interests of the country, does not make lawful legislation or conduct that is inconsistent with the separation of powers required by the constitution."  

These were the words of the Constitutional Court when it determined last November that the head of the special investigating unit should not be a judge. It found the unit's role and powers which are determined by the executive detracted from the independence of the courts and judicial officers' obligation to act impartially and "without fear, favour or prejudice".  

The so-called chapter nine institutions, which include the public protector and auditor-general, operate under precisely the same conditions of independence as the courts.  

What then might the Constitutional Court say were it to consider the nature of the participation in the arms deal probe of those two institutions? Put another way, what do the heads of these two institutions need to do, and avoid doing, to ensure that they act according to the letter and spirit of the constitution?  

Public Protector Selby Baqwa and Auditor-General Shauket Fakie are operating in concert with the directorate of public prosecutions, headed by Bulelani Ngcuka, who does not enjoy the same constitutional independence. The signs are that Ngcuka is, in many ways, driving the investigation.  

In a sense that should not be a problem. A probe like this needs to be co-ordinated to be effective and Ngcuka probably has the greatest investigative capacity of the three.  

Further, though his long African National Congress history was a cause of alarm to the political opposition when he was appointed as the country's top prosecutor, generally he has been seen to conduct the directorate's affairs without any sign of undue party political bias. However, there are two factors that should be of concern to the public protector and auditor-general.  

The first is their independent constitutional status, which is not shared by the directorate. If there is any sign that the directorate is pushing the investigation in a direction they find uncomfortable, it would damage their standing.  

The second is the profoundly political flavour the saga has taken on in the past few months and the pattern of events that suggest that the public protector and auditor-general have found it difficult to avoid becoming caught up in these dynamics. In many ways they are more in the political limelight than departing investigating unit head Judge Willem Heath ever was.  

The first signs of this were their attitudes to the turnaround over the participation of the unit in the probe. Their initial enthusiasm for a fourpronged investigation which seemed evident after their first meeting with the public accounts committee seemed to wane after government began to make clear its opposition to the unit's involvement. Fakie, at least, later put out a statement denying he had changed his stance, but some damage had been done. Baqwa, as far as can be ascertained, has remained silent.  

The auditor-general's position was compromised again by the withering attack by four cabinet ministers on his report on the arms deal. Again he belatedly defended his position. But it was clear that he was finding the political pressure difficult to deal with.  

And now there are rumours of a new turn in the investigation. It seems that the directorate has floated the idea of transforming the forensic investigation into a general public hearing where those against whom allegations have been made would be invited to respond to those allegations.  

It is not clear that there are any political motives behind this idea. It would not, however, serve the purpose of a satisfactory investigation. A public inquiry might appear to be a bold step, bringing the probe out into the open. It is even possible that a couple of sacrificial lambs might be found to feed public unease. But it would mark the end of hopes for a full investigation. It would probably scare off witnesses and informants who have no desire for publicity. It would be no substitute for a methodical forensic investigation, which should involve such steps as the acquisition and analysis of reams of documents. And it may well be that evidence that has not been developed fully is made public prematurely in a way that makes it easier for culprits to cover their tracks.  

Again, not for the first time in this probe and probably not for the last, the public protector and auditor-general are going to have to face the stresses of taking a view on the proposal "without fear or favour". And they are going to have to do so in a manner that they are seen not to be bending to political pressure.  

It won't be easy. This is why the arms probe is not merely a test of good governance and of Parliament's oversight function. It is a test of the strength of the constitution itself.  

With acknowledgement to Alan Fine and Business Day.