/ 28 May 2010

Who prosecutes the powerful?

Greed in the business and governing elite often leads to corrupt and undemocratic behaviour.

Greed in the business and governing elite often leads to corrupt and undemocratic behaviour.

The ethical renewal that the government and church leaders extol may be necessary in rethinking our value system, but in the medium term we will have to rely on the criminal justice system to police the rich.

This is why the debate on the leadership of the National Prosecuting Authority (NPA) is critical. It is the conduit through which we hope to ensure that those who are investigated will appear in court and be punished.

But it appears that the institution that prosecuted former police chief Jackie Selebi faces its greatest challenge — self-interest, political interference and intrigue have combined to ensure that those with the right connections are kept beyond the reach of the law.

Menzi Simelane, the NPA boss, appears to be both the puppet and the protagonist in attempts to scupper the constitutional vision of an independent prosecuting authority.

It would be naive to think that politics and the prosecution of economic crimes can be neatly separated.

Last year acting NPA head Mokotedi Mpshe made a legally questionable decision not to prosecute President Jacob Zuma.

His predecessor, Vusi Pikoli, provided exemplary leadership by not allowing self-preservation to trump the broader national interest. He had Selebi charged, despite the intervention of former president Thabo Mbeki and the justice department under Simelane’s leadership.

Pikoli’s predecessor, Bulelani Ngcuka, initially gave life to the constitutional vision of an NPA willing to prosecute corruption in the arms deal. But he also crossed the political line, joining former justice minister Penuell Maduna in announcing that he had a prima facie case of corruption against Zuma.

The media grandstanding and reluctance to proceed with charging Zuma while raiding his homes for evidence as far back as 2003 were politically calculated acts. Within six years the Scorpions had been caught in the crossfire and dismantled.

Almost every appointment of an NPA chief has provoked an uproar, given the appointee’s obvious connections with the ruling party.

Integrity tainted
But the difference now is that Simelane’s predecessors did not enter the office with their personal and professional integrity tainted by the findings of a commission headed by former parliamentary speaker Frene Ginwala.

He takes office at a time when sustained political corruption may be giving rise to impunity. Some of this is certainly the fruit of the NPA’s apparent inability to investigate and prosecute many individuals who murdered and looted under apartheid.

Simelane is shaping his legacy with bold action that does little to suggest he is serious about tackling graft. He has witnessed the excision of the Scorpions from the NPA to form part of the police, with at least one of its principals indicating that the top priority is now drugs, not elite economic crimes.

Within a few months, he has allowed the leadership of the effective specialised commercial crime unit to be gutted while pushing for the internationally acclaimed asset forfeiture unit (AFU) to be restructured in a manner that many believe will leave it impotent — and this within weeks of a decision to stop the unit from using inter­national law to seek the return of assets allegedly corruptly acquired by Fana Hlongwane during the arms deal.

The executive has said nothing about this, although it eventually felt it had to intervene when Simelane moved to shut down the AFU.

Is Simelane doing the bidding of others? Or has he developed the “Maroga syndrome” — believing, like former Eskom boss Jacob Maroga, that he is bigger than the institution?

The NPA is unlikely to deliver on its mandate under such leadership, though it is likely the ruling party will lose patience with someone who may be building his own fiefdom.

The question now is whether the good women and men in Parliament and in the ANC will speak out in time to ensure the preservation of the NPA as envisaged by the Constitution.

If they fail to do this, they fail us all.

Hennie van Vuuren is Cape Town director of the Institute for Security Studies

This article was made possible by funding from the Open Society Foundation for South Africa Media Fellowship Programme.