Will Cyril resist the temptation to fiddle with NPA’s independence?
Recent history of head of prosecutions demonstrates that the office has been targeted for manipulation
The Constitutional Court ruling on the unconstitutionality of Mxolisi Nxasana’s removal and Shaun Abrahams’ appointment as national director of public prosecutions (NDPP) presents a golden opportunity.
The National Prosecuting Authority’s mandate of instituting any criminal proceedings on behalf of the state without fear, favour or prejudice requires a fearless and independent individual to serve as the NDPP.
Therefore, restoring the NPA’s integrity is not as easy as just appointing a new NDPP.
However, the ConCourt judgement on the matter of Nxasana and Abrahams raises a key issue.
The judgment is scathing on the conduct of former president Jacob Zuma. It depicts him as having gone out of his way to interfere with the independence of Nxasana’s office.
Even if someone of integrity and commitment to the rule of law fills the position of NDPP, their effectiveness would be constrained if there is constant interference by the president of the country.
Given that Zuma was intent on getting rid of Nxasana at all cost the implication is that he was bent to exercise undue influence over that office at any given opportunity.
It, therefore, follows that Abrahams would have been subjected to the same interference as he was appointed by Zuma. The nickname “Shaun the Sheep”, given to Abrahams by the media, was calculated to illustrate this point.
After Zuma had removed Nxasana, who maintains that there was nothing to prove that he was not fit or proper to hold the office as NDPP, it was foolhardy of Abrahams to think that he could take over and act independently.
The following quotes from the judgement are damning:
“Former president Zuma was bent on getting rid of Mr Nxasana by whatever means;
“The inference is inescapable that he [Zuma] was effectively buying Mr Nxasana out of office. In my book, a conduct of that nature compromises the independence of the office of NDPP.”
Abrahams walked into an already compromised office.
Interference with the independence of the NPA did not start during the Zuma era. Zuma only perfected it.
The high court duly notes that the suspension of Vusi Pikoli as NDPP in 2007 by then president Thabo Mbeki was the beginning of the crisis at the NPA.
Investigative journalism at that time revealed that Pikoli rubbed Mbeki the wrong way by daring to go after then police commissioner Jackie Selebi, a close ally of Mbeki’s.
Mbeki’s resignation in 2008 did not save Pikoli though because his planned indictment of Zuma put him on a collision course with the interim administration led by former president Kgalema Motlanthe.
After dismissing Pikoli, Motlanthe appointed Advocate Mokotedi Mpshe, now infamous for dropping corruption charges against Zuma, a decision the courts have since declared irrational.
Currently, the greatest threat to the NPA is the continued politicisation of the institution, which is driven by the culture of interference from the president of the republic.
There is no disputing that the president has both the prerogative and the authority to appoint the head NPA.
Ramaphosa has the opportunity now to demonstrate his good judgement by appointing a fit and proper person.
However, the question is whether Ramaphosa will overcome the temptation to interfere with the operation of the NPA by unduly attempting to influence the NDPP, a temptation that his predecessors completely succumbed to?
With great power comes great responsibility. The Constitutional Court judgment clearly shows that Zuma abused his responsibility.
And the recent history of the NPA also demonstrates that Mbeki did fiddle with the workings of the NDPP.
Perhaps it is time to seriously consider imposing a check on the president’s powers, if the stability and integrity, not only of the NPA, but of our democracy, is to be guaranteed.