The decision by President Thabo Mbeki not to issue a proclamation authorising the Heath Special Investigating Unit to probe allegations relating to the arms procurement package is a victory for democracy and the constitution.

This decision, in the face of unprecedented pressure from opposition parties and sections of the media, is a bold assertion of the supremacy of the Constitution and the principle of the separation of powers. It is a statement of the government’s confidence in institutions established in terms of the Constitution to safeguard democracy and the public interest.

For several weeks there has been a sustained opposition campaign – against all available evidence – to suggest that an investigation which excluded the Heath unit would be unable to produce an accurate, independent finding. This campaign effectively sought to undermine the credibility of structures like the Public Protector, Auditor-General and the National Director of Public Prosecutions, suggesting that they were unable to conduct such an investigation themselves.

Several groups and commentators urged President Mbeki to include the Heath unit to demonstrate the government’s commitment to fighting corruption, and in doing so that he ignore the competence of other institutions, the Constitutional Court judgement that the unit in its current composition is unconstitutional and the legal requirements binding the president when he has to issue a proclamation.

The government was correct to reject such suggestions. The inclusion or not of the Heath unit has no bearing whatsoever on the government’s commitment to clean, accountable governance.

Instead the decision on the involvement of the Heath unit was based on the government’s commitment to the Constitution, its respect for the decision of the Constitutional Court and the laws passed by Parliament.

The Special Investigating Unit headed by Judge Heath was established in 1997 by former President Nelson Mandela in terms of the Special Investigating Units and the Special Tribunals Act, 1996. In terms of the Act, the President is empowered to refer to the unit to investigate any alleged instances of public corruption or maladminstration which he or she deems necessary, consistent with this Act. Since its formation, the President has referred numerous such cases to the Heath unit. The unit currently has to complete almost two hundred thousand investigations as directed in over sixty Proclamations issued by the President.

In November last year, however, the Constitutional Court ruled that the heading of the unit by a judge violated the separation of powers required by the Constitution. The appointment of Judge Heath was therefore unconstitutional and invalid. To ensure an orderly transfer of the leadership of the unit and to effect the necessary changes to the law, the court gave the government a grace period of one year. The court said however there were good reasons for Judge Heath’s position as the head of the unit ‘to be regularised without undue delay’.

President Mbeki therefore decided not to refer any new matters to the unit, and asked Justice Minister Penuell Maduna to ensure the proper composition of the unit as soon as possible after the opening of Parliament.

Far from undermining any public institution, President Mbeki’s decision confirms the government’s commitment to the Constitution and the rule of law.

With acknowledgement to ANC Today.