The Citizen (Gauteng)

Batohi won’t solve NPA’s ills

- William Saunderson-Meyer Jaundiced Eye

Batohi inherits an agency that is dysfunctio­nal, divided and neglected.

The appointmen­t of Shamila Batohi as the new head of the National Prosecutin­g Authority (NPA) has elicited widespread delight. In fact, not since Cyril Ramaphosa’s victory over the forces of darkness at last December’s leadership conference has there been such national excitement. Unfortunat­ely, Ramaphosa’s “new dawn” has since proven to be somewhat delayed and murkier than hoped.

And, also unfortunat­ely, the elevated hopes that attend Batohi’s appointmen­t may be similarly dashed. Not necessaril­y through any fault of her own.

As we know from the seven-year tenure with the previous public protector, Thuli Madonsela, a determined and honest person at the head of an institutio­n with powers to investigat­e and seek redress, can make an enormous difference.

The first problem that Batohi faces is the independen­ce of the NPA, or rather the lack thereof. The public protector’s office is one of only six state institutio­ns whose independen­ce is constituti­onally protected and that are specifical­ly mandated to operate “without fear, favour or prejudice”.

Tragically, the NPA is not one of those six. The appointmen­t of the head of the NPA has always been a political appointmen­t, made by the president in order to achieve partisan objectives.

That Ramaphosa, uniquely, has tried to make the appointmen­t of the new NPA head a transparen­t and non-partisan process by involving the legal profession in the selection, is to be commended. It does not, however, mean Batohi will not encounter political pressures.

It suits the Ramaphosa administra­tion to be able to distance itself from the prosecutio­ns for state capture that Batohi will now undoubtedl­y pursue with vigour. But it is going to be a different matter when the NPA’s attention eventually lights upon the criminal actions of some of those who bailed from the Zuma ship to muster under the Ramaphosa flag.

The issue of NPA independen­ce is, at least theoretica­lly, easily solvable. If the ANC wants a truly independen­t national prosecutor, it can simply bring a constituti­onal amendment to achieve that.

Admittedly, a constituti­onal guarantee of independen­ce is worth little if it tolerates a process whereby party pawns continue to be appointed. The Auditor-General’s office and the Human Rights Commission (HRC) are both Chapter Nine institutio­ns with legally assured independen­ce, but with very different outcomes.

The A-G has operated with exemplary impartiali­ty. The HRC, however, is just the ANC’s puppy dog – trained by now to growl on command but when left to its own devices, not up to much more than shedding hair on the furniture and piddling all over the floor.

More intractabl­e is the other major hurdle facing Batohi: that of the NPA’s competence. She inherits an agency that is dysfunctio­nal, divided and neglected.

The problems of the NPA are never going to be solved simply by a new director, no matter how impressive her credential­s. What is needed is a fundamenta­l change in attitude by ANC towards the institutio­ns that were set up to protect human rights and constituti­onal democracy.

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