What the NPA needs
A shepherd to wash the sheep
● In seeking to secure the independence of the national director of public prosecutions (NDPP), the National Prosecuting Authority (NPA) Act provides for a nonrenewable 10-year term of office. Our experience suggests the act may have been rather ambitious in setting this goal.
In the 20 years of its existence the NPA has gone through five NDPPs: Bulelani Ngcuka, Vusi Pikoli, Menzi Simelane, Mxolisi Nxasana and Shaun Abrahams. There have also been four acting NDPPs (incumbent Silas Ramaite, Mokotedi Mpshe, Nomgcobo Jiba and Willie Hofmeyr). Ngcuka, the longest-serving NDPP at six years, resigned in 2004 amid controversy for failing to prosecute Jacob Zuma alongside Schabir Shaik; Pikoli was fired in 2009 (though the Ginwala inquiry found him fit to hold office) in part because of the way the Scorpions investigated Zuma; Simelane’s appointment by Zuma was found to be irrational by the courts and set aside in 2011; Nxasana was enticed by Zuma to resign in
2015 (in return for R17.3m), and Abrahams’s appointment by Zuma was ruled invalid by the Constitutional Court this week.
Readers will have noticed the common thread — the one-man wrecking ball that is Zuma.
Cyril Ramaphosa inherited myriad challenges after he replaced Zuma as president in February, but perhaps none so daunting as who to appoint as the next head of the NPA. His choice will be assessed, analysed, dissected and critiqued from all quarters. Whoever he chooses will not please everyone.
In terms of the Constitutional Court judgment, the president has 90 days to appoint a new NDPP to replace Abrahams. What should he look for in such a person? The NPA Act says they must be a South African citizen with legal qualifications that enable them to practise in all our courts, and “be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office”.
The Ginwala inquiry into the fitness of Pikoli noted: “It cannot be a sufficient qualification that the NDPP has appropriate legal experience. To execute the responsibilities of the office … the incumbent must also have managerial and leadership skills and qualities. He or she sits at the apex of a complex organisation that employs large numbers of people, bringing together various elements of the criminal justice system. He or she must also possess an understanding of the sociopolitical climate that prevails, as well as the policy programme of the government.” Ginwala went on to note that “the notion [of integrity] relates to the character of a person — honesty, reliability, truthfulness and uprightness … Conscientiousness … relates to the manner of application to one’s task or duty — thoroughness, care, meticulousness, diligence and assiduousness.”
Clearly not all legal practitioners would qualify; that is merely a minimum requirement. In addition to fierce independence and being beyond reproach, the NDPP must be politically astute, capable of navigating the turbulent streams of our political terrain. Why is this so important? The NDPP is entrusted not only with prosecuting cases on behalf of the state and reviewing decisions to prosecute, but also formulating prosecutorial policy with the minister of justice.
Recent history tells us that the NDPP is required to take key decisions on the prosecution of high-profile politicians and their cronies; this is only going to escalate as evidence of state capture mounts. There will inevitably be pressure from within the governing party to tread softly in some cases — the new NDPP will need to be made of tungsten, and focus on the NPA’s constitutional mandate to exercise its functions without fear, favour or prejudice.
Although the NPA is not a Chapter 9 institution, its independence has been affirmed by the Constitutional Court. However, the line between independence and accountability is not clearly drawn. The constitution unhelpfully says the justice minister “must exercise final responsibility” over the NPA. This cannot refer to prosecutorial decisions, but its meaning is ambiguous. The minister is empowered to ask the NDPP for information and reasons for any decision taken by the NPA, to exercise this “final responsibility”. The act also provides that the NPA is “accountable to parliament in respect of its powers, functions and duties … including decisions regarding the institution of prosecutions”. Parliament needs to clarify these provisions.
It is this nebulousness that created the dilemma for Pikoli when investigating Zuma and former police chief Jackie Selebi — he kept both the president and minister informed of key developments. Though he was correct to do so in view of the seniority of the suspects and the potential political implications, the minister then overstepped the mark by directing
Pikoli to halt the prosecution. That was an unlawful directive, which Pikoli was correct to reject.
The constitution also grants the president the power to appoint the NDPP. In view of how this power has been abused by Zuma, the Council for the Advancement of the South African Constitution (Casac) has consistently called for the process to be amended to make it open.
A process similar to that used to appoint heads of Chapter 9 institutions, whereby a parliamentary committee interviews candidates and recommends one, may be considered. Another would be for the Judicial Service Commission (JSC) to make the appointment. Given the complementary role the NPA plays in administering justice, this may be more appropriate, especially as the JSC comprises members of the judiciary, legislature and legal profession.
When appointing this new NDPP, Ramaphosa should take the nation into his confidence, articulating reasons why that person has been selected, the skills and experience they possess, and what marks them out as the right person. It will disarm the naysayers if a high-quality candidate is named. It will give the new NDPP the confidence to set about rebuilding an institution vital to rebuilding the post-Zuma state.
The sheep may have departed but we still need a skilful and wily shepherd, able to use the staff to corral the crooks.
Naidoo is the executive secretary of Casac. He was the deputy secretary of the Ginwala inquiry