With the imminent exit of prosecutions chief Mxolisi Nxasana, the independence of the prosecuting authority is under scrutiny again. None of our national directors of public prosecutions have managed to finish the mandated 10-year term.
Is the National Prosecuting Authority’s (NPA) structure defective or is it being damaged by a dangerous political culture?
Between 1926 and 1992, according to former chief justice Ismail Mahomed, South Africa’s attorneys general were not truly independent because they operated under the “control and direction” of the minister of justice. The clause that empowered the minister to control attorneys general was only repealed on December 31 1992.
The reconstituted post-1994 prosecuting authority allowed the minister to exercise “final responsibility” over the national director, but the Constitution and the NPA Act have built-in mechanisms to ensure that “final responsibility” does not mean control.
Yet the guarantees of prosecutorial independence are once again being tested in the face of political interference and factional duels.
Different factions in the ANC have accused the NPA of being a political tool to settle scores. Under Thabo Mbeki’s presidency, the faction that campaigned for Jacob Zuma to become president did not hide its dislike of the NPA. They accused it and the elite Scorpions crime-fighting unit, which was soon disbanded, of political bias – yet political manipulation of the prosecuting authority increased under Zuma.
South Africans thought security of tenure for the prosecutions chief and the legal and parliamentary protection for the post that was entrenched in our Constitution were enough to ensure prosecutorial independence. We were wrong.
We believed that the powers of the executive would be counterbalanced by a vigilant legislature, the president’s decision to fire the prosecutions chief being subject to parliamentary approval. Little did we know that our legislators would forfeit their independence and become the political gofers of the executive.
Even after Frene Ginwala, the former speaker of the National Assembly, found that former prosecutions chief Vusi Pikoli was fit to hold office (after he had been suspended by Mbeki), the then caretaker president, Kgalema Motlanthe, fired him anyway. And the National Assembly applauded.
Motlanthe later conceded that the national director’s appointment (which lies in the president’s hands) was structurally defective and, if fixed, could resolve the political tension between the prosecutions chief and politicians. But this won’t entirely resolve the problem of political meddling in prosecutions, especially when some in the executive – including the president – are the subjects of prosecutorial (in)decisions.
For instance, one crucial hurdle in Zuma’s journey to the presidency was the national prosecution’s director’s decision about whether to prosecute him or not. Soon after the acting national director, Mokotedi Mpshe, dropped the charges against Zuma, the president was entitled to appoint a new prosecutions chief – a political and constitutional incongruity.
Zuma must surely have been conscious that whoever became the next national director of public prosecutions should be someone who would never dare think of reinstating criminal charges against him if they valued their career.
Does this call for a review of the presidential powers to appoint officials such as the national director, as suggested by the deputy chief justice, Dikgang Moseneke? I am, however, against changing the Constitution because of (or to suit) one man.
An alternative might be contained in the Democratic Alliance’s private member’s Bill, which suggests that the Judicial Service Commission be involved in the process of appointing the prosecutions chief. This sounds like a better option. But the JSC is not immune to political gerrymandering. Will ridding it of politicians make it effective? I doubt it.
Namibia adopted the JSC model in appointing its prosecutor general shortly after independence in 1990. The Namibian JSC consisted of “the chief justice, a judge appointed by the president, the attorney general and two nominated members of the legal profession”. This didn’t stop political meddling, but at least it ensured that the office of the prosecutor general was relatively insulated from the executive.
The Namibian Constitution and laws, like South Africa’s, gave the attorney general “the final responsibility” over the office of the prosecutor general. In 1992, however, the Namibian attorney general – a political appointee – abused the “final responsibility” clause and demanded access to a police docket – a case of sheer political interference.
The prosecutor general pushed back, resulting in the attorney general asking the JSC to take action against him for “insubordination”. The JSC said it was not a question of insubordination but a matter of the constitutional interpretation of the relationship between the two.
The displeased attorney general approached Namibia’s supreme court for a final constitutional interpretation. The judges were asked to decide whether the attorney general’s “final responsibility” meant instructing the prosecutor general “to institute a prosecution, decline to prosecute or terminate a pending prosecution in any matter”.
Mahomed, then Namibian chief justice, defended the independence of the prosecutor general: “The provisions of the Constitution referred to above suggest to me that the prosecutor general’s functions are quasi-judicial in nature, unlike the executive functions of the attorney general. Moreover, the manner of his appointment makes it clear, unlike the attorney general, [that] the prosecutor general is not a political appointment because he is appointed by the Judicial Services Commission.”
The court decided that the attorney general’s “final responsibility” did not mean giving instructions to the prosecutor general on when and/or whether to prosecute or not.
I am not sure whether the Namibian JSC model would guarantee the independence of South Africa’s national prosecutions director, because we are dealing with more than political meddling. Some of our prosecutions chiefs and their deputies have voluntarily flirted with politicians.
In 2006, Judge Eberhard Bertelsmann was critical of the former national prosecutions director, Bulelani Ngcuka, for discussing the plea-bargain deal of ANC politician Tony Yengeni with then justice minister Penuell Maduna.
“The independence of the office [Ngcuka] held,” said the judge, “and the fearless and unfettered exercise of the extensive powers that his office confers are incompatible with any hint or suggestion that he might have lent an ear to politicians who might wish to advance the best interests of a crony rather than search for the truth and the proper function of the criminal and penal process.”
Ngcuka was at the centre of the intercepted conversation recorded in the so-called spy tapes, in which he and others discussed the political timing of the decision to prosecute Zuma. We are still dealing with the consequences of their discussions.
And let’s not forget how deputy national prosecutions director Nomgcobo Jiba and former national prosecutions director Menzi Simelane were found to have placed their political allegiance above prosecutorial independence.
Unfortunately, their shaky credibility forced the courts to interfere in prosecutorial decisions, an intervention frowned on by legal observers. Criminal procedure author Professor JJ Joubert cautions that “it is irregular” for courts to “interfere with a bona fide decision of the prosecuting authority”, or to comment on the discretion of the NPA to prosecute or not, unless such discretion was improperly exercised.
We have seen how the courts had to intervene after Jiba refused to prosecute the controversial and suspended crime intelligence boss Richard Mdluli and how the courts forced Zuma to reverse his appointment of Simelane. Such judicial intrusion in the prosecution authority is undesirable. But it was necessary.
On the other hand, the opposition’s tacit interference and its fuelling of factional battles at the prosecuting authority is something we perilously choose to ignore. We have elevated former senior prosecutor Glynnis Breytenbach, now a DA MP, into a heroic paragon of prosecutorial ethics – but ignored her factional role in the battle for the soul of the NPA.
Granted, she has highlighted excesses and abuses by some of the NPA’s bosses, but she is no angel. Naively, we didn’t see anything wrong when she suddenly became a politician and joined the ranks of opposition MPs.
Would the DA be so comfortable had she crossed to the ANC, especially given its criticism of the latter’s policy of cadre deployment? That would mean that the official opposition values the independence of the prosecuting authority when it suits it and benefits it, but not otherwise.
We should forever be vigilant against the exercise of all politicians’ interests – not just the ANC’s – in state institutions.
We trusted the ANC with these institutions after the National Party politicised and destroyed them; we now deal with the implications of too much trust in politicians. Let’s not make the same mistake and be too trusting of the DA or any other party.
None of the international models and structures can guarantee the true independence of our prosecuting authority. Fortunately, the NPA’s national office – that is, the national director, his deputies and special directors – are not involved in the majority of prosecutions. It is for this reason that the prosecution system is largely still functional, thanks to hard-working men and women in our courts. At least the public’s faith and confidence in the credibility of our prosecutions system has not waned at this level.
It will take a change of political culture and the emergence of independently minded men and women who are not politically indebted to restore the credibility of the NPA’s national leadership.
Moshoeshoe Monare is deputy editor of the Mail & Guardian