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NPA BOSS WILL SAY MUCH ABOUT CYRIL RAMAPHOSA

21/11/2018 02:41:00 By BusinessDay

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THE drafters of SA’s Constitution had clear aims when it came to the independence of the National Prosecuting Authority (NPA). It cemented the notion in Section 179 that national legislation must ensure that the NPA exercises its functions, namely to institute criminal proceedings on behalf of the State, without ‘fear, favour, or prejudice’.

Who would head this crucial institution was also on their minds, as the national director of public prosecutions (NDPP) was to be appointed by the president.
But what would happen if the president did not play according to the rules? What if we had a president who would be willing to abuse this power for his or her political gain? This was not a consideration in the heady days of our democratic breakthrough, and left a loophole open to abuse.
Since the NPA’s establishment in 1998, not one of its directors completed a full 10-year term in office. Bulelani Ngcuka was the first to take office, and held the position longest. After his exit the revolving door has been largely influenced by the criminal charges against former president Jacob Zuma for payments he allegedly received in relation to the arms deal.

Suspension

Ngcuka’s successor, Vusi Pikoli, first indicted Zuma in 2005. Former president Thabo Mbeki suspended Pikoli in 2007 - it later emerged the suspension came weeks after an arrest warrant was issued for former police commissioner Jackie Selebi, an Mbeki ally.

Shortly after Pikoli was suspended, acting NDPP Mokotedi Mpshe indicted Zuma on 18 charges of fraud, corruption, money laundering and racketeering. Pikoli was removed from office in 2008, a few months before Mpshe made an about-turn and withdrew the charges against Zuma, a move which the courts found almost a decade later to be ‘irrational’.

Zuma then appointed Menzi Simelane as the courts started hearing what became a marathon battle for the so-called spy tapes, grounds for Mpshe’s withdrawal of the charges against Zuma. Simelane’s appointment was later reviewed and set aside by the courts.
He was followed by Mxolisi Nxasana as the next permanent NDPP, but Nxasana left after being offered a golden handshake. This opened the door for Zuma to appoint Shaun Abrahams.

It was finally Nxasana’s unlawful golden handshake that saw the courts strip Zuma of his constitutional power to appoint an NDPP, as he was just too conflicted. By the time the Constitutional Court declared the office of the NDPP vacant, and with that effectively fired Abrahams, Cyril Ramaphosa was president and free to appoint an NDPP of his choice.

He opted to appoint an advisory panel of experts to provide a shortlist of suitable candidates for the position. Last week, for the first time in a democratic SA, 11 candidates were grilled in full view of the public in interviews for the key post.

Approach

The advisory-panel approach was a decisive break with the past, when the president appointed the NDPP after consultation with only the minister of justice, in line with the NPA Act.
It marks a significant step towards more transparency, even though the interviews were opened to the public only after Right2Know secured a court order to that effect.

The panel nominated advocates Shamila Batohi, Siyabulela Mapoma, Simphiwe Mlotshwa, Rodney de Kock and Andrea Johnson for the post - all candidates who left the interviews with their integrity in check.

Ramaphosa now has until December 19 to make the appointment. It will be up to him, as one of the drafters of SA’s Constitution, to decide who to appoint, and then allow an independent NDPP to do his or her job without fear, favour or prejudice - regardless of which of his comrades gets implicated and prosecuted as allegations of, among other things, State capture continue to arise.

The alternative is to continue the approach of his predecessors and make appointments based on political survival and expedience. The route Ramaphosa opts for is one that voters should take heed of as SA takes to the polls in 2019.