Editorial: Grasp the nettle of fear
In a call to action following a brutal house robbery, economist Dawie Roodt wrote in an open letter this week: “I can see how this country is slowly deteriorating, how our institutions are held in contempt, with only a few left standing intact.”
Nowhere is this contempt more visible and more damaging than in President Jacob Zuma’s attitude towards the National Prosecuting Authority, which serves as the foundation stone of the state’s commitment to justice and the rule of law. His contempt is glaring in his decisions about the most senior and influential positions within the NPA, most notably that of the national director of public prosecutions (NDPP).
First there was the decision to appoint the lamentable but pliable Menzi Simelane, despite his coming under severe criticism from the Ginwala inquiry for his lack of candour. That appointment was overturned by the Constitutional Court, which found the president had to appoint someone who objectively met the standards of a “fit and proper person”. The president, the court ruled, could not simply do as he pleased.
But that is exactly what Zuma has done, again and again. To act in Simelane’s stead, he appointed Nomgcobo Jiba, someone Zuma clearly regarded as loyal to him personally. This was despite Jiba’s history of launching an attack on her own institution, the NPA, where she worked, backed by the shadowy figure of crime intelligence boss Richard Mdluli, another public servant whose loyalty to Zuma seems to be his most important recommendation. Jiba was only dislodged following another court action to compel the president to appoint a permanent NDPP.
Enter Mxolisi Nxasana, who immediately rang executive alarm bells by sidelining Jiba. The campaign to rein in or remove him began there. There were leaks about his past and his failure to secure a security clearance. Zuma announced an inquiry into his fitness to hold office, then left the matter hanging for months. When it was clear that the president had misjudged his appointee, the inquiry was again set in motion.
Then, when it became obvious that the case against Nxasana was flimsy and would backfire, Zuma pulled the plug on the inquiry just hours before it was due to open. Instead he reached an agreement to pay Nxasana R17 357 233 to make him go away.
In his place, without any public process, Zuma then appointed Shaun Abrahams, whom critics labelled a Jiba acolyte, a charge he strenuously denied.
On Sunday, the City Press newspaper reported that Abrahams had taken a raft of prosecution decisions on cases that appear highly charged politically – and that, if correctly reported, would reset the NPA’s course in Zuma’s favour again.
The claims include that Abrahams will abandon the charges against Jiba, whose perjury case was due to proceed later this month; that he has decided to charge former Hawks commander Anwa Dramat in connection with the Zimbabwean rendition case; and that he will pursue both former South African Revenue Services boss Ivan Pillay and his own NPA prosecutor, Gerrie Nel, the man Nxasana appointed to lead the anticipated reprosecution of Zuma family friend and fixer Thoshan Panday.
Worryingly, the NPA has refused to confirm or deny the report and the impression that Abrahams is fulfilling a political mandate is palpable.
Into this morass have stepped Corruption Watch and Freedom Under Law. The two organisations last week lodged a court application to set aside the R17-million deal removing Nxasana and to declare Abrahams’ appointment null and void. They argue the settlement with Nxasana contravened the National Prosecuting Authority Act, which provides for very limited grounds for the removal or resignation of an NDPP.
The case also asks the court to rule that, because of pending litigation to attempt to have corruption charges against him reinstated, Zuma is personally conflicted and should be ordered to devolve legal responsibility for appointing and removing the NDPP to his deputy, Cyril Ramaphosa.
This case represents the most acute challenge to the unlawful exercise of executive authority since South Africa became a constitutional democracy.
This is the case that could lead to a constitutional crisis, given that the courts are being asked to intervene in Zuma’s exercise of power in his own interests regarding a constitutionally mandated appointment. It will make the flouting of the legal attempt to detain Sudanese President Omar al-Bashir look like a picnic.
The government, of course, will kick for touch, hoping that Zuma’s term will run out before the various permutations of the legal process are concluded.
But, in a sense, the courts are merely catching up to reality. We are already in a constitutional crisis – a crisis of governance that is manifest in the hollowing out of the state, of its ability to supply clean water, reliable electricity, cost-effective contracts … the list goes on.
In the words of Roodt: “I can see how corruption, nepotism, cronyism, incompetence and inferior leadership are leading this country into economic stagnation, unemployment, poverty, chaos and the eventual inevitability: the cesspit of a failed state, from where even those cancerous cells that created this environment can’t escape.”
Like Roodt, we all need to grasp the nettle of fear, we need to stand up and refuse to accept “our country being beaten and robbed”.