Law & order
Cyril’s shiny new broom
● A recent judgment of the Constitutional Court appeared to weigh heavily on his mind when
President Cyril Ramaphosa announced advocate Shamila Batohi’s appointment as the national director of public prosecutions (NDPP) this week. In August, the court declared the golden handshake to former NDPP Mxolisi Nxasana unlawful, and set aside the appointment of his successor, Shaun Abrahams.
Ramaphosa said: “In making this order, the court highlighted the severe challenges that have confronted the National Prosecuting Authority (NPA) in recent years, including leadership instability and a decline in public confidence … In appointing a new NDPP, we are addressing the state of dysfunctionality and deficiencies in the NPA identified by the court.”
Batohi has grasped the poisoned chalice, but her 23 years of experience within the NPA, and that gained over almost a decade at the International Criminal Court (ICC), stand her in good stead to lead the turnaround of this organisation. She is a seasoned prosecutor accustomed to working in difficult conditions — the ICC has itself been a cauldron of global political and ideological contestation.
She comes to the job after a rigorous selection process. Ramaphosa assembled an ad hoc advisory panel to assist him and, for the first time, the position was advertised. An open and competitive process is always more likely to produce better outcomes.
A key challenge will be to restore staff morale that has been battered by internal power struggles. Batohi will need to get the conscientious prosecutors fired up again, knowing they have a leader who has their backs. Hopefully some of the good ones who left may want to return. The 200-odd vacancies must be filled, and Ramaphosa has committed the government to do what is necessary to make the NPA an effective unit once again. He will have to get the Treasury to walk the talk.
Ramaphosa has also recently instituted inquiries into the fitness of deputy NDPP Nomgcobo Jiba and special director of public prosecutions Lawrence Mrwebi to hold office at the NPA, presided over by retired Constitutional Court justice Yvonne Mokgoro, who is due to report to him in early March next year. His commitment during his inaugural state of the nation address in February this year to deal with the crisis at the NPA is finally being realised. Should these two key figures — reputedly responsible for the instability — be removed from office, a new era will truly be upon the NPA.
The exodus of senior prosecutors has also led to a dwindling of prosecutorial firepower and it will take time to rectify this. A short-term fix would be to ask lawyers in the private sector to make some time available for a sort of pro bono “national service” to enable the NPA to meet demands and expectations that have now been elevated. The professional legal bodies readily offered their assistance to serve on Ramaphosa’s panel, and they must now take this a step further by encouraging their members to offer their time and skills to combat crime and corruption.
During her interview, Batohi raised the issue of establishing a special investigating directorate to combat corruption and state capture. Such a directorate would bring together investigators, forensic experts and prosecutors, operating in much the same way as the erstwhile Scorpions. Privatesector skills would also need to be employed.
The NPA stands at the centre of the criminal justice system, the interlocutor between the investigating agencies, primarily the SA Police Service and the Hawks, and the courts. It occupies a unique institutional position, not fitting easily within the executive; it is not part of the judiciary, nor is it a Chapter 9 institution supporting constitutional democracy.
Its constitutional mandate to prosecute criminal matters without fear, favour or prejudice has, however, been deemed by the Constitutional Court to secure its independence from executive or legislative interference. It is guided in its prosecutorial decisionmaking by a prosecutions policy that is determined in consultation with the minister of justice.
However, the constitution somewhat bizarrely says that the minister of justice “must exercise final responsibility over the prosecuting authority”, while the NPA Act requires it to account to parliament. It is this ambiguous provision that has created some of the tension between the minister and the NDPP, most notably when then minister Brigitte Mabandla tried to stop the execution of an arrest warrant against Jackie Selebi. This stand-off in 2007 led to the suspension and ultimate departure of Vusi Pikoli as NDPP, precipitating the downward spiral of the NPA. As some high-profile prosecutions are likely to flow from the revelations at the Zondo commission, the temptation to seek to influence the NPA may become too great for some in authority to resist.
Batohi will need the support of the government to succeed. She has to negotiate a relationship with the minister of justice that provides for sharing of information, underpinned by mutual respect, without compromising the operational and prosecutorial autonomy of the NPA. Ramaphosa will, if necessary, have to rein in his ministers and members of his party to prevent attacks undermining this. The NPA, and Batohi in particular, will not be spared the backlash that defenders of state capture have unleashed.
Herein lies a role for civil society organisations to act as the guardians of a fearless prosecution service. The Council for the Advancement of the South African Constitution (Casac), Corruption Watch and Freedom Under Law went to the Constitutional Court to put a halt to Zuma’s destruction of the NPA.
We must now be part of its resuscitation by zealously protecting its integrity.
Casac successfully challenged the constitutionality of two sections of the NPA Act relating to the security of tenure of the NDPP. Parliament will have to amend that legislation to bring it into line with the court’s declaration. This provides an opportunity to rectify other aspects of the Act that impinge on the NPA’s independence, including clarifying the “final responsibility” of the minister of justice and formalising the open, transparent and competitive appointment process. Now is the time to clothe the NPA in a suit of armour.