National Director of Public Prosecutions Mxolisi Nxasana.
Years of meddling by politicians for party and factional gain have comprehensively weakened and corrupted South Africa’s prosecution service – a vital part of the fight against crime.
The worsening pattern of manipulation takes two forms: the sabotage of senior officials by their factional opponents, mainly by digging up dirt on them and feeding it to the media, and attempts to have individuals prosecuted or shielded from prosecution based purely on whether they are viewed as political enemies or allies.
Together they pose an extremely serious threat to our constitutional order: once political actors or their cat’s paws in state service start treating criminal prosecution as an instrument to bolster their power, we are on the brink of Zimbabwean-style party-based tyranny.
The cancer of interference first took hold during the presidency of Thabo Mbeki, when prosecutions boss Bulelani Ngcuka defied his own prosecutors by insulating Jacob Zuma from corruption charges, and Mbeki sidelined his successor, Vusi Pikoli, in an apparent move to protect both Zuma and then police commissioner Jackie Selebi.
The campaign to topple Mbeki and install Zuma in the highest office sparked an orgy of intrigue by various state agencies that should have remained scrupulously above the fray. These included the crime intelligence division of the police, which spied on the Scorpions and, allegedly, the prosecutions authority, in a successful drive to undermine the case against Zuma.
In his memoir My Second Initiation, Pikoli makes it clear that he was offered the bribe of reinstatement if he undertook not to reinstitute the Zuma charges.
Under Zuma’s presidency, the factional battles around the position of national director of public prosecutions (NDPP) have become so entrenched that certain highly paid civil servants seem to devote most of their energies to pursuing them.
That, in part, provides the context for the controversy around prosecutions boss Mxolisi Nxasana. There can be little doubt that the sudden surfacing of dirt about events in his past has been orchestrated by a Zuma-aligned faction in the National Prosecuting Authority (NPA) that wants him out.
Much has been made of the fact that he does not have security clearance, and a thorough screening would presumably have outed the skeletons in his cupboard before he was appointed. But the leak to the media can also be seen as a preliminary shot across his bow by his rivals.
As the Mail & Guardian reports this week, Nxasana claims his enemies fear that he may reinstate fraud and corruption charges against suspended crime intelligence head and Zuma loyalist Richard Mdluli. What may also have told against him is his failure to lay charges against Glynnis Breytenbach, the former senior prosecutor who was intent on putting Mdluli on trial, despite single-minded attempts to discredit her using internal disciplinary processes.
What makes the terrain so treacherous for those seeking to cut through the NPA murk is that Nxasana cannot be considered a straightforward victim. There are no good guys in this sorry saga, a situation that has become disturbingly common in South African public life. As a source told the Sunday Times, a dirty war is being waged “by people with very impure motives”.
It does not seem that charges were brought against him, but there are good reasons to worry about the undisputed involvement of such a senior law enforcement official in more than one incident of serious violence. He does not appear to have disclosed his involvement in a killing (in self-defence, he says) and another “incident” related to an alleged stabbing on which he has declined to elaborate. Such reticence raises questions about his integrity (and good sense).
In addition, it must be a source of some discomfort that he was charged with reckless driving and allegedly tried to resist arrest for speeding as recently as 2012. His insistence that he has no criminal record is something of a technical defence: a senior official in such a key state institution must inspire public confidence.
What is to be done to arrest this sinister trend? Reacting to last year’s report that Nxasana had not been subjected to a security clearance, Dene Smuts (who has since retired as a Democratic Alliance MP) called for an entirely new appointment and removal procedure for the NDPP. The weaknesses of the existing procedures were highlighted in the aftermath of the Ginwala inquiry into Pikoli’s suspension, by the then president, Kgalema Motlanthe.
Zuma’s almost unalloyed discretion to decide who should occupy such a politically charged post is obviously asking for trouble: currently, all he is legally required to do is ensure that the appointee is a fit and proper person. Pikoli’s fate also shows that the current provisions in the NPA Act – an inquiry, a presidential decision and ratification by an ad hoc committee of Parliament – offer absolutely no security of tenure.
Critics of the appointment process have recommended a transparent system in which the best possible candidates are nominated by the public and interviewed by a parliamentary committee, with Zuma appointing Parliament’s final choice. They have also called for a constitutional safeguard against politically motivated removal.
If the ANC uses its majority muscle to torpedo such proposals, it would be fair to infer that it favours the manipulation of the prosecuting service for sectarian gain.