Batohi can help strengthen rule of law
Tough time ahead as populists linked to VBS will invoke race
A YEAR ago, Jacob Zuma was the president, Tom Moyane was the commissioner of Sars and Shaun Abrahams was the National Director of Public Prosecutions (NDPP).
In addition, we had the further misfortune of being served by a host of ministers with limited abilities and a questionable commitment to the constitutional imperative of improving the lives of all.
Some of these imprudent appointments, which appear to have been made to advance parochial self-serving interests, were palpably not in the best interest of the country and have significantly contributed to the quagmire in which we find ourselves.
The cost to the nation are the floundering and dysfunctional state-owned enterprises, a struggling economy, strong prima facie evidence of state capture, rampant rates of crime and a prosecuting authority which, at the highest levels, lacks the necessary independence, competence and professionalism.
The stark truth is that we are saddled with the costs of their misrule and abuse of public power. Twenty-four years after democracy, we should be much further down the road of freeing the potential of the people, eradicating poverty and reducing the level of inequality in society.
Fortunately, we literally dodged the proverbial bullet by the removal of these appointees from their positions.
The new incumbents face the mammoth task of reordering and reinvesting many of the state institutions to make them fit for purpose again. Those who have benefited from the misrule and abuse of power will make every effort to subvert and undermine the current incumbents.
Last week, President Cyril Ramaphosa announced Advocate Shamila Batohi as NDPP as from February 2019.
In discharging this important responsibility, the president is required by law to appoint a fit and proper person of experience, conscientiousness and integrity.
This is a vital appointment in any constitutional democracy as decisions of the NDPP have major consequences. The decision to withdraw charges against former president Zuma – found years later to be irrational by the courts – paved the way for him to become president of the country.
Previous presidents have not distinguished themselves when appointing NDPPs. The Ginwala Commission found that president Thabo Mbeki’s intent to fire Vusi Pikoli was unjustified, while the Constitutional Court set aside Zuma’s appointment of Advocate Menzi Simelane as it was irrational for the president to appoint Simelane after the Ginwala Commission found he lacked integrity.
Subsequently, Zuma managed to get rid of Mxolisi Nxasana by handing over more than R17 million of taxpayers’ money to him and appointing Shaun Abrahams in his place.
Recently the Constitutional Court ruled that the appointment of Abrahams was unlawful and that Zuma acted contrary to the law in paying Nxasana this enormous amount of money as an incentive to vacate his post. Nxasana was required to repay the money and was correctly not given his job back.
He had failed to demonstrate the integrity required when he accepted the sweetener from Zuma to abandon his responsibilities as NDPP.
Ramaphosa clearly wanted to distance himself from and avoid making choices as poor as those of his predecessors.
The president, recognising the dire state that the NPA finds itself in, made the commendable decision to set up a panel of independent persons to assist him by interviewing the candidates and submitting a list of five candidates to choose from.
This is a rare instance of a politician voluntarily placing fetters on his or her constitutional powers to advance the national interest.
The regrettable decision not to allow the public access to the interviews was overturned by a court, hence the process was conducted openly and transparently.
The thorough, thoughtful and open process was designed to finally get the decision right after a lamentable cycle of poor appointments. This process delivered Batohi as the preferred choice.
Unlike any of her predecessors, she was evaluated by an independent panel, objectively appraised against her competitors and found to meet the legal standard better than anybody else that raised their hand for this post. That is a singular achievement by anyone’s standard.
She is a career prosecutor who led the prosecution service in KZN from 2000 to 2009 and thereafter served as an adviser to the International Criminal Court.
She was in the ideal position of having considerable prosecutorial and managerial experience after successfully running the KZN office and not being contaminated by the disarray that engulfed the office from the time that then acting head Advocate Mokotedi Mpshe made the irrational decision to halt the prosecution against Zuma in 2009.
From my recollection, she was deemed, on a few occasions, to be the best performing Director of Public of Prosecutions in the country during her tenure as head of the KZN prosecution service.
She no doubt has the proven capacity to deliver but the issue is whether she will be permitted to discharge her responsibilities in the manner envisaged in the Constitution.
In the early ’90s, I was asked by the University of Natal to represent a large number of students, arrested and charged for protesting against apartheid.
I drafted a detailed set of representations, arguing that the freedom of expression was of fundamental importance in any society. I submitted that these young men and women should be afforded the space to express themselves – their political expression was an act of responsibility for which they shouldn’t be prosecuted.
The then senior public prosecutor, Mr Oberholzer, disdainfully tossed my written submissions across his desk and told me he would teach me and the students a lesson for their breaches of the law.
A week later, then president FW de Klerk, made his famous speech on February 2, 1990, announcing the unbanning of the liberation organisations and the commencement of meaningful negotiations.
At our next court appearance, Mr Oberholzer, reading from my representations, announced the withdrawal of the charges against the students as it was legitimate for them to express themselves politically.
He had sensed the winds of change and changed his attitude to coincide with it. Leadership matters as it has the potential to inspire, to motivate others to do the right thing and to bring the very best out of us. Regrettably it also has the potential to appeal to the basest instincts of our nature. There is a renewed sense of hope that we now have a leadership that is committed to acting in the best interest of the country and genuinely advancing the constitutional project. Batohi has been drafted into this team.
She will face serious challenges and in the near term her race will be evoked by populist politicians particularly those desperately trying, through bluster, to distance themselves from involvement in the looting of the VBS bank.
But at a more profound level, she is privileged to hold one of the highest constitutional offices and has the opportunity, afforded to very few, to contribute directly to the strengthening of our constitutional order and the rule of law for the benefit of this and future generations. This is her tryst with destiny.
● Professor Govender is a constitutional lawyer and former professor of law at UKZN