THE banners on either side of the stage, set up for the members of the commission of inquiry into the fitness for office of National Director of Public Prosecutions (NDPP) Mxolisi Nxasana, looked forlornly unnecessary in the brief glimpse TV viewers got of them as the news broke that the commission would go down as the shortest inquiry in SA’s history.
The fruitless and wasteful expenditure involved in the procurement of the colourful banners was apologetically brought home by the head of the commission, advocate Nazeer Cassim SC, who expressed his regret to the gathering before declaring the commission officially closed, all within three minutes of opening it.
He announced that the instruction to cease the inquiry came in the small hours of that morning, which was scheduled to be the first day of six weeks of evidence for and against the fitness for office of Nxasana, who was appointed by President Jacob Zuma before he was given the necessary security clearance for the job of leading the National Prosecuting Authority (NPA) and fulfilling the onerous constitutional obligations that go with it.
The root of the problem that led to the instruction to cease the inquiry, and also many other problems, is that Zuma is too conflicted and too compromised to properly fulfil his functions as head of state and head of the executive.
The NDPP is a unique public servant in our constitutional dispensation in that he is able to set prosecution policy himself, with no more than the concurrence of the justice minister. Usually, public servants are obliged to implement the lawful policies of the government of the day. The NDPP is required to lead the prosecuting authority in a manner that enables it to exercise its prosecutorial functions without fear, favour or prejudice. These features, as with the judiciary and the chapter nine institutions, require stoic independence.
To his credit, Justice Minister Michael Masutha let it be known in his preliminary submission to Cassim that the NPA is in chaos. With its head under investigation and several of its senior members facing disciplinary or criminal proceedings for their misfeasance and malfeasance, “chaos” may be an understatement. It is certainly chaotic to fail to obtain a security clearance for the new NDPP before appointing him rather than after the fact.
Cassim was unable to shed any light on the reason for the abandonment of his inquiry, nor did the Presidency in its terse announcement that “the president is currently engaging with Mr Nxasana with a view to taking decisions which are in the best interest of the NPA, Mr Nxasana and the country at large”.
When the commission was first announced, President Zuma let it be known that there were concerns about Nxasana’s fitness for office because of brushes with the law earlier in his life. These episodes, arguably irrelevant to the current fitness for office of the incumbent, were apparently not mentioned, revealed or disclosed in the pre-appointment processes through which he went before he was chosen to succeed Menzi Simelane, whose appointment the courts found irrational. One might have expected a modicum of circumspection and caution regarding the appointment. This was not to be; Nxasana was in office for months before the security clearance issue was raised.
It is unsatisfactory that in its announcement the Presidency is silent on the reasons for the decision. It is shocking that the NDPP and the public are treated in this way. It is foundational to our new order that openness, accountability and responsiveness be put in place in governance. Zuma seems serially incapable of adhering to these simple yet salutary values. Due to his long and somewhat chequered past, he is too compromised and too conflicted to perform his constitutional obligations “diligently and without delay”, as the constitution requires of him. The delays surrounding the Cassim inquiry have been unconscionably dilatory. They have served to undermine the effectiveness of the leadership the NDPP is meant to bring to the NPA. His shabby treatment is a case of “justice delayed is justice denied”.
The public and the media are now required, due to the opacity of the Presidency, to speculate and draw inferences from the sparse content of the announcement. Given the recent goings on at the South African Revenue Service and with the heads of the Hawks and the Independent Police Investigative Directorate (Ipid), the smart money says a package deal is being negotiated that will see the NDPP resign with a golden handshake.
No one is guessing that Zuma and his NDPP will kiss and make up; instead, rumours are rife that advocate and former African National Congress MP Willie Hofmeyr will succeed Nxasana as a reward for the strong affidavit he made in opposition to the review application brought by the Democratic Alliance with the aim of getting the 783 criminal charges of corruption, fraud, defeating the ends of justice and racketeering reinstated against Zuma.
Zuma may also be concerned that the NPA will be called upon, when the long-awaited and long-overdue report of the police minister on Nkandla sees the light of day in Parliament, to institute criminal proceedings arising out of the matter.
Then there is the small matter of protecting the troubled friends of the president who occupy high office in the police and the NPA. Richard Mdluli, former head of crime intelligence and a stout ally of Zuma, continues to lead a charmed life despite the numerous charges pending against him. Deputy NDPP Nomgcobo Jiba seems to have the clout to have the investigating officer in the criminal case against her not only taken off the case but also dismissed from his post. Nxasana appears willing and able to see through the charges against these Zuma allies and also ready to act on the upcoming Marikana report. This surely does not sit well with Zuma.
The cosy deal done with Anwa Dramat, the formerly illegally suspended head of the Hawks, now resigned, could be overturned by a diligent NPA that prosecutes either Dramat or his false accusers.
The lot of Ipid boss Robert McBride might lead to his being prosecuted for defeating the ends of justice, if an independent mind (like those at Werksmans Attorneys) is brought to bear on the issues related to the two conflicting Ipid reports on the renditions of Zimbabweans to the police in that lawless country, one inculpating Dramat, the other exculpatory. And if the former report is false, who should face prosecution for manufacturing false SMSes that show Dramat’s complicity?
As Masutha has observed, the NPA is indeed in chaos. And much of the chaos is due to Zuma’s compromised and conflicted status. The administration of criminal justice will remain dysfunctional for as long as appointments are made in its top structures on the basis of cadre deployment in Zuma’s interests and not that of the public.
• Hoffman is a director of Accountability Now (www.accountabilitynow.org.za).