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The best possible future for the National Prosecuting Authority

The NPA will blossom on new National Director of Public Prosecutions Shamila Batohi’s watch, if it is relieved of the burden of prosecuting state capturers and the seriously corrupt in high places.

It is sobering to reflect on the fact that the announcement of the appointment of Shamila Batohi, as National Director of Public Prosecutions, was delayed while the President conferred at length with three of his Cabinet ministers before making the announcement.

The three are Jeff Radebe, longest serving Cabinet member and “fixer” of matters relating to energy policy; Bheki Cele, whose involvement in corrupt activities relating to leases for police headquarters has still not been investigated by the “relevant authorities” despite the recommendation of the Moloi board of inquiry to that effect; and Michael Masutha, who signed off on the crooked, invalid and illegal deal to rid the NPA of the good leadership of Batohi’s precdecessor but one, Mxolisi Nxasana.

Radebe chaired the informal selection panel that recommended a shortlist for NDPP; Cele, mirabile dictu, is Ramaphosa’s Minister of Police, and Masutha holds the justice and correctional services portfolio, as he did in the Zuma Cabinet.

In short, the President was being advised and counselled by three people who, at least arguably, should shortly (when he gets serious about implementing his anti-corruption intentions) find themselves in the dock of a criminal court, as to who should lead the prosecution service responsible for seeking their conviction. No wonder there was a delay.

There is little doubt that Batohi was the best candidate of those left standing on the shortlist prepared under Radebe’s chairmanship. Whether she is rapidly able to address the dysfunction in the system remains to be seen.

SA has subscribed to the UN Sustainable Development Goals, one of which contemplates the establishment of strong institutions of state capable of dealing effectively with corruption in all its manifestations.

It is clear that the NPA is not such an institution. This is not only a matter of its capture by the forces bent on repurposing the state to their own nefarious goals. It is also a matter of structure.

The current structure of the NPA is such that it is incapable, on its own, of stemming the impunity that has become established for the politically well-connected during the nine years of Jacob Zuma’s presidency.

Prior to the election of Zuma as ANC president in Polokwane in December 2007, the NPA had a Directorate of Special Operations, commonly known as the Scorpions, which had investigative and forensic expertise that enabled it to go after the corrupt in high places effectively and efficiently. Since Zuma came to power in Polokwane in 2007, only two politically well-connected persons have been convicted and sentenced to long terms of imprisonment on corruption charges: they are the late Jackie Selebi and John Block, both of whom were investigated by the Scorpions.

For the rest, the Travelgate fraudsters and the tenderpreneurs, the best outcomes for justice have been generous plea bargains with minor “slap on the wrist” punishments that saw political careers continue seamlessly despite the “smallanyana skeletons”.

The Anti-Corruption Task Team, created in 2012, has never run a corruption trial that did not end in a plea bargain or acquittal. The Hawks have only ever investigated a highly placed politician for wicked factional purposes when they made a fuss and a hash of trumped up charges against Pravin Gordhan.

Constitutionally speaking, we have a single prosecuting authority which “has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings”.

The Constitutional Court does not regard the work of the Scorpions as “incidental to instituting criminal proceedings” and allowed their dissolution at the instance of the Zuma faction to proceed unhindered despite legal challenges impugning every stage of their dissolution and beyond to the constitutionality of the Hawks, their replacement.

This means that, from a structural and operational perspective, the NPA is now in the hands of the Hawks (officially the Directorate of Priority Crime Investigation) for the investigation and forensic preparation of all “priority crime” cases it prosecutes. The implication is that the serious prosecution of corruption is only as good as the investigation done by the Hawks.

Sadly, the Hawks have an abysmal track record. Apart from their abuse for factional ends in ANC infighting, they have not landed a single big fish, have not even secured a single arrest in the expensive Steinhoff debacle and have fewer and fewer investigations year after year.

Their rates of arrest declined from 14,793 in 2011 to 5,847 by 2015. They have certainly not improved since then. This ever-dwindling effort was made at a time when the Constitutional Court described corruption as “rife” in SA and a “malady in danger of graduating into something terminal”.

The Hawks are understaffed, under-resourced, have been poorly led, and have limited forensic capacity. Their morale is low and their leadership baffled by cadre deployments designed to hobble them. Small wonder then that corruption threatens to destroy all we hold dear in our hard-won democracy.

The malaise in the NPA relates to Zuma favourites being deployed in management positions. Some of these are now under investigation for their fitness to hold office, others hide in the long grass and continue the Zuma “fight-back campaign” from their positions of power in ways that are hard to detect and even harder to stop, short of a massive clean-out of prosecutors of dubious repute. This cleansing of the Augean stables is a task that is well-nigh impossible given the labour law dispensation in SA that puts “unfair labour practices” front and centre.

In these circumstances, the repair work necessary to restore the NPA to a properly functioning institution of state that complies with the UN SDGs, to which SA has committed itself, is a task that will take many years to complete, with recruitment of suitable staff and replacement of unsuitable deployed cadres of the Zuma faction of the ANC gradually being effected in the face of multiple Stalingrad strategies and a clinging to office for nefarious purposes holding up the process as the law is used to fight the reform needed.

Frankly, SA does not have the luxury of the time it will take those acting with the best will in the world to restore the NPA to functionality when it comes to countering kleptocracy, state capture and grand corruption. In other respects, with ordinary crimes, the NPA is capable of functioning properly, it is only when political influence and interference become spectres that it fails, and will continue to fail, to pass muster.

The capture of the NPA was the start of the Zuma state capture project. The decision to disband the Scorpions (an integral and vital part of the NPA in which Batohi herself held a leadership position) was the “open sesame” to impunity for corrupt activities.

At the time Gwede Mantashe, then Secretary General of the ANC, explained to Helen Zille, then leader of the opposition, that the Scorpions were “prosecuting ANC leaders” and had to be closed down. The notion that ANC leaders should be regarded as some form of royal game, immune from prosecution, is incompatible with the rule of law and the principle of equality before the law. Yet, the notion persists.

Appointing Menzi Simelane as leader of the NPA was a cynical attempt by Zuma to render himself immune to prosecution. Fortunately it did not work, but while Simelane was in place, with wheels of justice grinding far too slowly in his removal application for the public good, the hegemonic vision of the ANC was allowed to undermine the independence of the NPA in ways still being felt to this day and beyond.

To sum up: both the NPA and the Hawks are not, from a structural and operational perspective, well equipped to deal with serious corruption.

The Hawks are meant to be specialised, but are not – as “priority crime” covers a multitude of sins. They are meant to be well-trained but lack expertise on their own admission. They are meant to be adequately independent, sufficiently so to operate free of political interference and influence. The experiences of Pravin Gordhan show that this is not the case, as does the failure to net a single “big fish”. Inadequate resourcing and lack of security of tenure of office (where are Dramat, Sibiya and Booysen now?) see to it that the Hawks cannot be described as a strong institution of the kind the UN SDGs require.

While these limping structures and operational lack of capacity endure, so will serious corruption.

The swiftest means available for dealing with the impasse is to create an Integrity Commission under Chapter Nine of the Constitution with a mandate to prevent, combat, investigate and prosecute serious corruption, kleptocracy and all forms of state capture.

The best of the untainted NPA personnel and the good Hawks can be transferred, after proper vetting, with recruits from the private sector, into this establishment and given the task of cleansing the nation of the corrupt unhindered by those whose agenda is to protect the corrupt.

With opposition support, the Integrity Commission could be in place within a year. The draft legislation and minor constitutional amendment required have already been prepared and are available for consideration on the website of Accountability Now (on the Glenister case page).

The notion of an Integrity Commission of this kind enjoys the support of Professor Thuli Madonsela, our former Public Protector, and Archbishop Emeritus Desmond Tutu. Opposition parties in parliament favour its creation. The IFP has even tabled a motion to this effect. The ANC led Constitutional Review Committee of the National Assembly afforded a friendly hearing to its promotion and is still mulling the idea.

What is required now is the generation of the political will to make the change happen. The support of the new NDPP, Shamila Batohi, will go a long way toward generating the necessary political will. It will also spare her the headache of dealing with the inability of existing institutions to deal with serious corruption.

The NPA will blossom on her watch, if it is relieved of the burden of prosecuting state capturers and the seriously corrupt in high places. SA will become a shining example of proper implementation of UN SDG 16. The poor, who have suffered most under the yoke of the corrupt, will be able to look forward to a better life as funds misappropriated are recovered, corruption is curtailed and social spending can be increased in the housing, health and education sectors.

The role of ordinary citizens in this effort is to insist that the political party they support is fully supportive of the creation of the Integrity Commission. The NPA has plenty of non-corruption work to do, especially as regards violent crimes, and the Hawks can get on with the investigation of other priority crimes that will not fall within the ambit of the work of the Integrity Commission.

Batohi, by insisting on the creation of a specialised body to deal with serious corruption, has the potential to restore the NPA to its former glory using the talents of her freshly invigorated staff, free of the burden of prosecuting the corrupt, to fulfil the revised mandate to institute criminal proceedings on behalf of the state. Her first order of business is obviously to champion the urgent establishment of an Integrity Commission that complies with the criteria for corruption-busting laid down by the courts in binding fashion, but not implemented during the lawless, amoral Zuma era. DMPaul Hoffman SC is a director of Accountability Now

Paul Hoffman SC is a director of Accountability Now

One Response to The best possible future for the National Prosecuting Authority

  1. John Wilkinson 11 February 2019 at 3:21 pm #

    To be Recommended – should be part of any “Manifesto” for the upcoming National and Provincial Elections on )* May 2019.

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