Financial Mail

CYRIL’S HESITANCY SPEAKS VOLUMES

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Now why did President Cyril Ramaphosa feel he needed a panel to help him appoint a new National Director of Public Prosecutio­ns (NDPP) to succeed Shaun Abrahams? It is a reflection of the appalling state of affairs in SA that the president apparently does not want to be solely responsibl­e for appointing our equivalent of a national attorney-general.

Constituti­onally, the president has substantia­l powers of appointmen­t. Ramaphosa seemingly had little difficulty replacing directors at huge state-owned companies. He was even able to pull Tito Mboweni out of the hat when faced with the sudden, potentiall­y devastatin­g resignatio­n of finance minister Nhlanhla Nene. Some consultati­on would have been expected on the NDPP appointmen­t, but a formally constitute­d panel?

The answer must be that the underminin­g of presidenti­al legitimacy in the Zuma years is so extensive that Ramaphosa lacks confidence. He must feel he needs to protect himself from accusation­s within the ANC — for that is where he is most vulnerable — that in appointing a prosecutio­ns boss he would be pursuing his own agenda.

What is this agenda? He has said what it is, and we must assume it is guiding all his appointmen­ts: to root out corruption, and to seek criminal prosecutio­n and punishment for those who deserve it. He may be afraid to appoint unilateral­ly a person who, by character and record and qualificat­ions and reputation, will have the ability and the will to drive precisely that, without fear or favour. When the wheels of justice at last begin to turn on state capture, it will almost certainly mean arresting and charging some senior members of the ANC and perhaps the cabinet, and others who have grown accustomed to being close to power.

In a sense, much of the work of the NDPP has already been done. He or she will just have to press the buttons. Talk about low-hanging fruit. We have had the public protector’s damning report into state capture, the Nugent inquiry into the sabotage of the SA Revenue Service and the Zondo commission on state capture. Each of these has produced prima facie evidence for prosecutio­ns. And there is more to come.

Ramaphosa knows this. He wants to, and knows he must, appoint an NDPP who is highly competent and courageous, and will act swiftly — but he wants somehow not to be personally associated with the consequenc­es.

Normally one would expect the president to look to the ranks of state prosecutor­s and choose from the most senior, respected, qualified and experience­d among them. But the criminal justice system was not normal under apartheid, and whatever state of normality it reached in the first 15 years of democracy has now receded, after a decade of increasing capture. It is not clear how much senior and untainted prosecutor­ial talent remains available to the state.

Should the panel look for a person who is already a public figure and a household name, whom lawyers will respect and the public can trust? If so, this would be the equivalent of the appointmen­t of Mboweni as finance minister. He was arguably the only available heavy-hitter the markets would be prepared to accept as being on the level of ex-ministers Trevor Manuel, Pravin Gordhan and (until recently) Nene. Ramaphosa would love to appoint such a person as NDPP.

Or should the panel look for a relatively faceless senior public servant, whose legal credential­s are impeccable, but who will need to build legitimacy with the prosecutor­s, the legal profession and the public? Such a person would have an uphill battle. Another route would be to look for someone who has left the service, but whose recall would instil new energy and boost morale.

Whoever is recommende­d to Ramaphosa, the president will still have to solely own the appointmen­t. The fact that he needs to pretend he will not is more revealing than he may realise.

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