Since the appointment of our new national director of public prosecutions, Advocate Shamila Batohi, a number of writers have commented on the appointment and the state of our national prosecuting authority. Most have been critical of the state of the NPA while at the same time welcoming the appointment by President Cyril Ramaphosa.
The president, no doubt, set this fresh appointment in process by having an open approach and leaving it to a qualified panel to recommend the best candidate. The panel itself was not appointed by the president, for he had called major role players in the legal fraternity to nominate their representatives. This process in itself received very little mention in the commentary but was on its own a great achievement for our democracy.
The achievement of this appointment is not only the result of an open and transparent process but it also enjoys legitimacy, given that the legal fraternity now takes ownership of the appointment. Let us be clear though that despite the legal fraternity playing a major role in the appointment and that Advocate Batohi nows enjoys the confidence of her peers, it was an appointment by the president as endowed by the Constitution of the Republic.
Constitutionally the appointment of the NDPP remains the prerogative of the president. Transparency and legitimacy are vital instruments in any democracy. As a result, the informal institutionalisation of this process whereby the the NDPP was appointed can only strengthen our democracy and will hopefully be the practice again, in a decade’s time, when a new NDPP is appointed. However, it remains informal.
The role and purpose of the prosecuting authority in any democracy is imperative. Even more so, its independence must be insisted upon and strengthened. It is for this reason that the drafters of our Constitution declared boldly in Section 179, sub-section 4 that “…national legislation [now the National Prosecuting Authority Act of 1998] must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.”
If anything, the past five national directors of public prosecutions, since the dawn of democracy and none having completed their constitutional term of a decade, have somewhat negatively impacted on the prosecuting authority and, in the eyes of the public, this has been viewed as an erosion of its ability to exercise its functions without (political) fear, favour or prejudice.
We continue to be haunted by the words of the first NDPP, Bulelani Ngcuka, who declared to the nation that the NPA had “…concluded that, whilst there is a prima facie case of corruption against the deputy president (at the time, Jacob Zuma), [their] prospects of success are not strong enough.” Former president Jacob Zuma, nearly sixteen years later, will again appear in court on this same matter in May next year.
While former president Thabo Mbeki may well have been within his right to ask the then NDPP, Vusi Pikoli, to be prudent in his pursuit of former national police commissioner, Jackie Selebi, we must now be able to suggest that the subsequent suspension of the NDPP did not strengthen the constitutional imperative of the NPA to be fearless, not to favour and be without prejudice. Clearly there was an interference in the independence of the NPA.
Inquiries and court judgements have pronounced on the tenures of Menzi Simelane, Mxolisi Nxasana and Shaun Abrahams and none of these have inspired confidence in the NPA while the palace politics of the prosecuting authority, especially at a national level, continues to go unabated. In fact, in its judgement on the invalidity of the appointment of Advocate Shaun Abrahams, the ConCourt noted that “since September 2007 the recent history of the NPA ‘has been one of paralysing instbility’”, quoting the High Court judgement in the matter.
Even though the appointment of Advocate Batohi inspires confidence from her legal peers and even if President Ramaphosa’s process has strengthened openness and legitimacy, the question remains, given the internal politics of the authority, with or without the so-called and so painted protagonists such as Advocates Lawerence Mwrebi and Nomgcobo Jiba, whether this highly professional person, Advocate Batohi, will last?
By all accounts, the opposition will contend that this was not a “political” appointment; even though the president appointed her. Too often this, that it was a “political appointment”, has been used as an excuse for the eroding image of the NPA. The toxic institutional culture of the NPA, from the national office down to the provincial offices, has been left unattended. If Advocate Batohi attempts to shift this institutional culture in a space where it inspires confidence again as an institution that operates without fear, favour or prejudice then she will indeed be met with heavy resistance and invariably she will not last.
The nation was given an idea of this institutional culture during the interviews of the process which led up to Advocate Batohi’s appointment. It would serve her well to listen to the testimonies of those short-listed with her for the job. The interview of the then acting NDPP, Advocate Silas Ramaite, the PDPP in KwaZulu-Natal, Advocate Moipone Noko and the PDPP in the Western Cape, Advocate Rodney de Kok, among others, all pointed to a NPA that needed a paradigm shift in thinking and operation.
Needless to say that the independence of the NPA was once again questioned with the recent provisional withdrawal of the case against the so-called Estina Dairy Farm accused. Let us be clear, a provisional withdrawal well means that the case may be re-instated in the future but it could also mean that the case will never be reinstated. If the NPA, who now says that they are working with law enforcements agencies in India and the United Arab Emirates, was not ready to proceed with their case or did not have enough evidence why were the accused, innocent till proven guilty, arrested in February already?
There should be no doubt that their arrest had to do with the political climate that existed in the country at the time. February 2018 will go down in history as the month that former President Zuma was recalled and everyone and anyone had to be seen to be acting against him, the Guptas and state capture. While it may be honourable of people to have championed this cause, we would have expected the noble office of the DPP not to have been caught up in this hype because after all, it, unlike the rest of us, operates within the constitutional mandate to be free from fear, favour and prejudice.
Cases against any accused cannot be seen to be reacting to political events in our country. If anything, this single continuous occurrence has eroded the respect in the office of the NPA in the last two decades of its existence. The accused in the Estina Dairy case were accused of serious offences and the withdrawal of the case, albeit provisionally, does not inculcate a culture of law and order especially between the private and public sectors which is so sorely needed within our country.
Wesley Seale is a PhD Candidate at Beijing University in China.