Nxasana – is government flying by seat of its pants?

My mind is still reeling with unanswered questions about what happened at the Cassim commission of inquiry.

If you’ve been under a rock this week and missed it: on Monday, we (the media) all trooped into the South African Law Reform Commission’s offices in Centurion.

We showed our “Cassim inquiry” media tags, we signed a register and settled ourselves in for what was expected to be at least three days of inquiry into whether our national director of public prosecutions (NDPP), Mxolisi Nxasana, is fit and proper to be our prosecutions head.

Some of us – me, for instance – had spent the weekend reading judgments, researching what should be expected of a fit and proper national director of public prosecutions.

The room was decorated with banners emblazoned “Cassim Inquiry”; the TV cameras and lights had been set up.

Just before it was due to start, the legal teams were called in for a brief meeting.

Then they all came back and members of the panel came in and took their seats. They introduced themselves and the inquiry was declared open.

I was still writing “Cassim Inquiry – May 11, 2015” in my notebook when inquiry chairman, advocate Nazeer  Cassim SC, said he had something to tell us: late the previous night, he got a call from the Presidency telling him his mandate was terminated.

The inquiry was hereby closed.

And then they all got up and left.

I should pause at this point to say it has been almost a year since this inquiry was first announced. And on Sunday morning we had received an e-mail saying we needed to be there at 8.45am sharp.

By the time I was in my car on my way back to the office after Monday’s abrupt termination, I was already hearing on the radio about a “settlement”, citing highly placed unnamed sources.

But official word from President Jacob Zuma was – and still is – that they are “engaging”.

So now there will be no inquiry and there is some secret deal going on, which we will probably hear about only through highly placed unnamed sources.

The Presidency still has not given a proper explanation.

There are plenty of disadvantages to political and governance disputes being resolved by legal processes such as courts and inquiries.

But there are also some really important advantages, such as there are no unnamed sources (who might have their own agendas).

Even more crucial, it is all done in public.

Another is that we get to see and hear both sides.

We have now seen what the government’s case against Nxasana was going to be.

It was all in the public domain anyway and, for what it is worth, I thought it was rather weak.

But we have not heard Nxasana’s side at all.

I, for one, wanted to hear Nxasana’s explanation on how he could say that an assault on his girlfriend, albeit that it happened ages ago, was not serious misconduct.

I still want to know whether it was really possible that the information about Nxasana’s past brushes with the law came to light only after he was appointed. How could the systems have failed so badly?

Ultimately, I want to know whether Nxasana is fit and proper to be NDPP. Because if he is, why must he leave?

And the way the inquiry was canned – at the very, very, very last minute – does not exactly instil a sense of confidence. It gives me a panicky feeling that our government is flying by the seat of its pants.

I question the narrative that every threat to the independence of our institutions emanates from Number One or the government. At the very least, it cannot be that simple.

In every democracy there are tensions between government and its independent institutions. Threats can come from inside the institutions themselves and from other outside players: factional battles, lack of transformation, corruption, incompetence, the influence of big business, the influence of organised crime.

But when a crucial institution such as the National Prosecuting Authority (NPA) is in really serious trouble, dealing with it in secret – with no proper explanation – only makes the problem worse.

And it does – it must – justify us asking what, if anything, our government is trying to hide.

Franny Rabkin  is the law and constitution writer for Business Day where this article first appeared