Zuma too ‘conflicted to appoint NPA head’
TWO rights groups, Corruption Watch and Freedom Under Law have asked the High Court to set aside Mxolisi Nxasana’s settlement with the government and that it declare President Jacob Zuma not appoint a national director of public prosecutions because he is conflicted.
Mr Nxasana left the National Prosecuting Authority (NPA) in June after an inquiry into his fitness to hold office was withdrawn without explanation.
The groups want the court to declare that as long as Mr Zuma is in office, his deputy be responsible for the appointment, suspension and removal of the national director of public prosecutions.
They argue that Mr Zuma remained in jeopardy of being prosecuted under charges that were “withdrawn for reasons unrelated to the strength of the case against him”. They were referring to the corruption case against Mr Zuma dropped in 2009 by then acting national prosecutions chief Mokotedi Mpshe.
The Democratic Alliance (DA) has challenged the dropping of the charges and the matter is still before the courts.
In an affidavit Corruption Watch executive director David Lewis said it was clear that the decision to drop the charges against Mr Zuma were not based on the merits of the case. “The decision whether or not the president is ultimately prosecuted is one which may well turn on a discretionary decision taken by the (prosecutions chief), or an official in the NPA, acting under the authority of the (prosecutions chief).
“The president has an objective interest in ensuring that the person who occupies the office of the ( prosecutions chief) is someone who will be sympathetic to his interests if he or she is called on to make such a discretionary decision,” he said.
For this reason, the Constitution “precludes” Mr Zuma from making any decisions in relation to the appointment, suspension or removal of the prosecutions chief.
They also want Mr Nxasana to refund the state his R17.3m golden handshake, saying the National Prosecuting Authority Act did not allow for “consensual termination”
of his appointment and for the court to declare that he still holds the position of national director of public prosecutions.
They contend Mr Zuma did not follow procedure and Mr Nxasana’s removal from office was “inconsistent with constitutionally enshrined independence of the NPA”.
Mr Nxasana served only 17 months of his 10-year term. Mr Zuma launched an inquiry into his fitness to hold office after his past brushes with the law came to light, but it was canned at the eleventh hour and a settlement between the pair was announced that allowed Mr Nxasana to vacate his office.
The rights groups said yesterday they had taken legal action because they were “deeply concerned” at the “flagrant disregard of national legislation” in the NPA debacle.
“There has been untrammelled abuse of public power and the creation on unlawful precedent relating to the removal and appointment of the (prosecutions chief), a position which has been plagued with controversy,” they said.
The act was clear on the ways in which a sitting prosecutions chief could be removed and this was specifically done to ensure the independence of the authority.
Mr Lewis said there was no negative finding against Mr Nxasana as the inquiry into his fitness to hold office was abandoned. He also asked the court to set aside the appointment of his successor, Shaun Abrahams, as there was no vacancy for the post of national director of public prosecutions since Mr Nxasana’s removal from office was unlawful.
The respondents in the case have 15 days to indicate whether or not they oppose the application and 30 days to file papers in response. They include Mr Nxasana, Mr Zuma and Justice Minister Michael Masutha, the NPA and Mr Abrahams.