Reports that ANC president Cyril Ramaphosa is on the verge of removing prosecutions head Shaun Abrahams are perplexing because it is legally impossible outside of a court process, which has yet to be finalised.
Although it is reasonably clear that Abrahams is on his way out one way or another, it may take a while unless he resigns.
It is also legally impermissible for the ANC president to initiate or instruct any prosecution to take place. Prosecutorial decisions can only be taken by the National Prosecuting Authority (NPA). This is the issue that Vusi Pikoli, the former national director of public prosecutions (NDPP), and former president Thabo Mbeki clashed over — leading to Pikoli’s removal. The most Ramaphosa can do is what he has already done: expressed a desire for more action by the NPA.
To preserve the independence of the NDPP, the Constitution and the National Prosecuting Authority Act make it difficult to suspend and remove the NPA head. There are specific grounds for it — misconduct, incapacity, ill health or lack of fitness to hold office — but there must be an inquiry and then Parliament must confirm the removal decision.
And all the power is in the hands of the president of the country. In terms of the Constitution and the Act, Ramaphosa should have nothing whatsoever to do with the removal or appointment of a prosecutions head.
But a recent judgment of the high court in Pretoria found that the departure of Abrahams’s predecessor, Mxolisi Nxasana, was unlawful and set it aside. On the basis of justice and fairness, the court also found that the subsequent appointment of Abrahams was invalid and thus set it aside. The court also ordered that, because President Jacob Zuma is conflicted, the deputy president — Ramaphosa — should appoint the next NDPP.
For as long as Zuma is president, Ramaphosa is “responsible for decisions relating to the appointment, suspension or removal of the national director of public prosecutions”, the court ordered. It also declared certain sections of the NPA Act to be unconstitutional.
But the court’s order has yet to be confirmed by the Constitutional Court, which has given the NPA, Abrahams and Zuma until January 19 to file answering papers.
Zuma has also filed an application with the high court for leave to appeal against the part of the order that allows Ramaphosa to step into the president’s shoes.
The court said “the orders of invalidity … relating to the NPA Act” are referred to the Constitutional Court — making it possible for the presidency, the NPA or the NDPP to argue that the president’s appeal should follow the normal course and work its way through the appeal system, which would take even longer.
But the Council for the Advancement of the South African Constitution, in its application for confirmation, said the entire order should be dealt with by the Constitutional Court. This would make the process shorter, although there would still have to be a hearing and then a judgment.
The Sunday Times reported that Ramaphosa had been given a legal opinion that he would be able to remove Abrahams immediately but the Mail & Guardian was unable to confirm that such an opinion had been given, by whom and what it said. So it is unclear how this could be achieved.
Ramaphosa’s acting spokesperson, Tyrone Seale, said, because the matter of the NDPP was currently before the courts, the office of the deputy president would not comment.
Another possible scenario would be if the ANC was to recall Zuma, and Ramaphosa, or another caretaker president, was appointed. A new president could suspend Abrahams under the Act — but again, only for misconduct, incapacity, ill health or if he is not fit and proper for the job, and this would still have to be followed by an inquiry.
It is theoretically possible that the two processes (confirmation proceedings at the Constitutional Court and a fit and proper inquiry) could happen at the same time. But if past experience is anything to go by, the inquiry would take longer than the court proceedings. Still, if the idea is to prise Abrahams out of the driver’s seat as soon as possible and Zuma is no longer president, this may be another way to go.
The only other way would be if Abrahams was to resign in the face of pressure — which, it is understood, has been building up, including within the NPA. If he resigned, it would mean that one of the four deputy national directors would have to be appointed to act.
Nomgcobo Jiba is on special leave, pending an appeal against a judgment that struck her from the roll of advocates, so Abrahams’ place would have to be filled by Silas Ramaite, Pinky Mokhatla or Willie Hofmeyr.
Rumours that Ramaphosa will move on Abrahams “this week” persist, which means that either they are unfounded or that decisions are being taken politically — alongside or outside of the constitutional process. This may long have been happening at the NPA. (Why, for example, did the asset forfeiture unit sit on a preservation order for more than a month before executing it? And why did it have to be threatened with a court application?)
But if Ramaphosa’s big schtick is to clean up corruption and unlawful conduct, interfering in the NPA before he is entitled to would not a good way to start.