It is time to stop playing games with the institution that has a critical role to fulfil.
“We need to ensure that none of the institutions we create become so powerful that neither Parliament, the executive nor the judiciary can address their excesses and abuse of power, and protect the public,” a well-known politician cautioned five years ago.
“The NPA [National Prosecuting Authority] needs to be allowed a period of healing and refocusing,” the same politician said, shortly after criminal charges against him were dropped.
But the NPA is neither healed nor focused. It’s still bleeding from, and distracted by, the actions and decisions of this very same politician. His conduct and judgment had an effect on the careers of the six national directors of public prosecutions, including two acting directors.
The NPA’s founding national director, Bulelani Ngcuka, spent years building a criminal case against the politician but never charged him. His successor, Vusi Pikoli, charged the politician but was later fired. Then acting successor Mokotedi Mpshe mysteriously withdrew all the charges against him.
Then, an inconceivable (in a normal society, that is) political turn of events swung the pendulum of power, propelling a criminal suspect to the presidency and granting him enormous power to appoint the prosecutions chief.
First, he appointed Menzi Simelane, who had to leave office in disgrace after the politician was forced by the courts to fire him. The NPA’s acting successor, Nomgcobo Jiba, tried hard to hide the so-called “spy tapes” that led to the dropping of criminal charges against President Jacob Zuma.
If you were in any doubt, he is the politician I am talking about.
Zuma’s second attempt to appoint a permanent national director yielded bizarre results: an enigmatic Durban lawyer with a furtive past. Mxolisi Nxasana is now facing an inquiry into his fitness to hold office, a result of his violent teenage years.
Mr President, will you ever “allow” the NPA to “heal” and “focus”? Your actions and decisions have – inadvertently as well as directly – caused major ructions within, and harm to, this crucial institution.
Perhaps it doesn’t matter to you, now that you have rapaciously secured power. Do you remember your words on that hot, humid day in that Durban hotel on April 6 2009, when you expressed concerns over the consequences of the politicisation of the NPA?
You said: “We must clearly strive for a public service in which officials serve the people and not individuals with ulterior motives, no matter how powerful they are.”
Were they the virtuous rumblings of a presidential candidate thrilled that he would not go to jail after all?
Think of life beyond your insulated power. You need to leave behind strong institutions that will not be easily manipulated because you may need them in your retirement.
Unless someone repairs the damage done to this jinxed and faction-ridden NPA, it will end up being run by thugs, politicians, pressure groups, self-styled constitutional experts and the judiciary. This will negate the principles of the rule of law and the separation of powers.
The decision of whether to prosecute or not will be taken under pressure from third parties or motivated by political considerations. It will be a betrayal of the lawyers Griffiths and Victoria Mxenge, who were murdered by the apartheid state and whose names are etched at the NPA’s headquarters to remind us of the tragic consequences of the absence of the rule of law and the depredations of political interference.
For a decade, the NPA’s instability was primarily a result of factional fights over whether to prosecute Zuma and other politically connected people. Its managers have always allowed politicians to undermine its primary role; from those who believe Zuma must be prosecuted at all costs to those who will stop at nothing to make sure that no charges are brought against him.
Of late, Zuma’s (perceived or real) proxies – such as the controversial, suspended crime intelligence head Richard Mdluli – have done as much to polarise the NPA’s management.
Sadly, the public and media tend to believe any scumbag who wants to escape prosecution by claiming that “I’m being prosecuted because I want to charge Mdluli or Zuma”.
On the other hand, their equally shady rivals in the NPA also want to cling to power by alleging that they were being persecuted because of their proximity to “Msholozi”.
Nxasana also played the Mdluli-Zuma card recently.
I hope this inquiry will investigate objectively whether Nxasana is “a fit and proper person, with due regard to his ... experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned”. And I hope it will not spend time inquiring whether or not he wants to charge Zuma, Mdluli et al.
Charging these people – if there are sound legal grounds – should be a separate but top priority. We cannot have a national director whose only credibility lies in his pursuit of Zuma and Mdluli.
Others may argue that Nxasana’s failure to disclose material facts about his past is a separate security matter, one governed by the National Strategic Intelligence Act, and that it has nothing to do with discharging his duties.
Incidentally, one of the contentious issues that triggered questions about Simelane’s credibility related to his failure to disclose Thabo Mbeki’s letter about the arrest of former police chief Jackie Selebi. In the Simelane case in the Constitutional Court, Justice Zac Yacoob commented: “It is obvious that dishonesty is inconsistent with the hallmarks of conscientiousness and integrity that are essential prerequisites to the proper execution of the responsibilities of a national director.”
What South Africa needs right now is a man or woman of integrity in the post. Nxasana has inherited an imploding organisation, rotten at the top but with hard-working prosecutors at the bottom. The NPA and those diligent prosecutors can no longer afford a leader whose survival is dependent on political patronage. The institution has been compromised so much that it is now run perilously through the courts.
Frustrated individuals, who believe in the rule of law and justice, have sought the judges’ counsel regarding decisions that ought to be entrusted to the national director. Deferring these decisions to the courts is an unfortunate precedent that displays the depth of the fault lines in the NPA – cracks that have the potential to erode our criminal justice system and human rights ethos.
In the Simelane case, Yacoob also warned that the office of the national director “must be nonpolitical and nonpartisan, and is closely related to the function of the judiciary broadly to achieve justice and is located at the core of delivering criminal justice”.
The temptation is always there that the judges, in frustration, might overstep their mark in trying to halt the rot at institutions such as NPA. The Supreme Court of Appeal’s Judge Fritz Brand pointed out that high court Judge John Murphy “went too far” when he decided that the NPA must reinstate charges against Mdluli.
Appositely, Brand stated: “The court will only be allowed to interfere with this constitutional scheme on rare occasions and for compelling reasons. Suffice it to say that in my view this is not one of those rare occasions and I can find no compelling reason why the executive authorities should not be given the opportunity to perform their constitutional mandates in a proper way.”
I agree with this assertion, but the public’s faith in the NPA leadership is waning, leaving the likes of Murphy with no option but to apply what former Constitutional Court Justice Kate O’Regan called the “jurisprudence of exasperation”. If the independence of the top prosecutors is compromised, then someone needs to step in to prevent unfair application of the law.
In his autobiography, Pikoli warned: “If we do not have independent prosecutors who refuse to take instructions from political principals then we will have a partial and unfair application of the law.”
The courts were also called on to rule whether Simelane’s appointment was rational and “within the bounds of the Constitution”. The judges ruled that the president’s decision was irrational. Politicians were peeved, with the then minister of justice, Jeff Radebe, warning that the court’s argument “amounted to an unauthorised intrusion into presidential and executive territory”.
He was right – to a degree. He forgot that the intrusion was a consequence of the politicians’ meddling and their failure to protect institutions such as the NPA. The inept executive invited a judicial invasion.
Funnily enough, when they are cornered, politicians are quick to remind us of the sanctity of the doctrine of separation of powers and the independence of chapter nine institutions. When Zuma felt that the NPA was on his back a decade ago, he turned to the public protector.
“I was alarmed by the failure by the then minister of justice and constitutional affairs and that of the head of the NPA to co-operate with the public protector in his investigations arising out of my complaint in 2003 that my rights had been violated by the NPA,” he lamented.
A decade later, he is no friend of the public protector and, for five years, has failed to appoint a fit and proper person to head the NPA.
It seems the independence and integrity of these institutions are only valuable to the president when it suits him. But they are, always, deeply valuable to South Africa as a whole. They must outlive all of us.
Moshoeshoe Monare is the deputy editor of the Mail & Guardian.