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What Shamila Batohi can and cannot do

Caught between a rock and a hard place, National Director of Public Prosecutions Shamiela Batohi will have to consider structural and operational reform of the laws governing the fight against the corrupt.

The media hype around the commencement of the 10-year non-renewable appointment of Shamila Batohi as National Director of Public Prosecutions (NDPP) has assumed proportions far removed from the realms of what is possible and what is legally permitted.

Batohi, according to the hype, might in the public imagination now be a hybrid invention with the DNA of super-woman and the blessings of a fairy with a magic wand, whose power to make all good wishes come true the stuff of legend.

The cold unvarnished facts, in this time of crisis in, and capture of, the criminal justice administration are somewhat different.

The NDPP has the powers set out in section 179(5) of the Constitution. She determines prosecution policy (with the concurrence of the minister of justice), issues policy directives, intervenes in prosecutions when the policy directives are not complied with and may review a decision to prosecute or not to prosecute. That’s it.

The minister, in turn, has the task of exercising “final responsibility over the prosecuting authority”. He was a little reluctant at the media briefing, at which Batohi was introduced, to limit his powers to mere “final responsibility” (which has been narrowly construed in Namibia in a case in which the phrase was considered), but did correct himself to reduce the “responsibility” he might like to have to the more limited “final responsibility” which the law allows him.

The power of the NDPP to make prosecution policy in the manner described above (after consulting with her directors of public prosecutions) is unique in our constitutional framework. No other civil servant has policy-making power. Usually, ministers make policy. Any policy that is made has to align with the law and the Constitution.

The dysfunction manifestly now present in the criminal justice administration can be traced back to the dissolution of the Directorate of Special Operations (DSO, or Scorpions as they were popularly known) and to the projects of various nefarious entities and individuals to capture the NPA (think Jacob Zuma, Gavin Watson and of course the Guptas as well as the corporate entities associated with their ilk). The DSO was part of the NPA; dissolving the DSO deprived the NPA of its original investigative capacity which was then transferred to a mere police unit called the Directorate of Priority Crime Investigation (or Hawks). The NPA has, since the inception of the Hawks, been reliant on the Hawks to do the investigative work required to bring those guilty of priority crimes to book.

Without a proper investigation, the prosecutors are stymied in their quest to administer criminal justice without fear, favour or prejudice. This has led, in recent years, to obfuscation, delay, inexplicable withdrawals and dissembling in respect of prosecutions sorely needed in respect of crimes in which the politically well connected may be complicit. The Nkandla debacle, the criminal termination of the services of the NDPP Mxolisi Nxasana, the Estina Dairy “provisional withdrawal”, the escape of the Guptas and all the criminality which may be lurking in these and other events are all evidence of the dysfunction. It is unavoidable, given the fair labour practice principles that apply in the workplace in South Africa, including the NPA workplace, that those who are captured (possibly, ahem, Jiba and Mrwebi) or partially captured (those prosecutors hiding in the long grass and undermining the course of criminal justice) that it will take years to identify and winkle out the bad eggs in the NPA basket.

The courts have complained for a long time that Jiba and Mrwebi are incompetent, but they are still on special leave and facing the wrath of their colleagues and former colleagues in the proceedings of the Mokgoro commission of inquiry into their fitness for office. The country can scarcely afford these delays, but the fair process is allowed in law, and the delays will plague any NPA “cleansing” (to use the word President Cyril Ramaphosa chose at his recent business briefing). An NPA dependent on the Hawks for the investigation of priority crime will not restore the equilibrium of justice, currently so out of kilter.

If Batohi wants to box smart on countering grand corruption she will first have to get the cases relating to corruption in high places moving swiftly. That there was wrong-doing in some matters has already been established in the civil courts. The follow-through in the criminal courts has been inexplicably delayed. If the explanation is that the ANC exercises its desired hegemonic control over the NPA and has become a criminal enterprise itself, and still is, Batohi is sure to be stymied. The presidential reassurance of her independence will be tested by this circumstance.

The relevant questions are whether Gavin Watson had some pure and charitable intent in gifting R500,000 to team CR17, whether Ace Magashule knew nothing about Estina and other capers in the Free State and whether David Mabuza is at the centre of a web of fraud and corruption. Similarly, as regards the professional demise of Mxolisi Nxasana, the need to prosecute the man with the “final responsibility” as well as former president Jacob Zuma has been allowed to bounce between the Hawks and the NPA endlessly since July 2015. That was when charges were first laid and the opinion of two independent senior counsel to the effect that corrupt practices were prima facie in evidence was shared with the police. Maybe this is why the issue of the nature of his responsibility cause the minister to stumble over his words at the media briefing introducing Batohi. Another person whose criminality ought to be the subject of a “without fear, favour or prejudice” prosecution is Minister of Police Bheki Cele. The new NDPP should dust off the report of the Moloi Board of Inquiry and give effect to the recommendation in it that the then “incompetent and dishonest” national commissioner of police should be investigated for his involvement in corrupt activities. This recommendation, like the SIU Bosasa report, has been ignored or buried for too long.

Getting on with cases that involve a former president and two sitting Cabinet Ministers, one of whom is constitutionally required to exercise final responsibility over the NPA, is the litmus test of the efficacy and independence of Batohi, with or without her super-powers and magic wand. The housekeeping aspects of rendering the NPA a better functioning entity for dealing with grand corruption would require a magic wand. Far better that Batohi use her clout and connections to convince those in government who are not already corrupt (heaven help us all if they are unable to muster a 66% majority in Parliament) that the quickest, cleanest, most efficient and effective way forward with combating corruption is to create, using the brightest and best in the NPA and Hawks, a one-stop shop for the purpose of preventing, combating, investigating and prosecuting grand corruption, kleptocracy and State Capture.

This new entity, an integrity commission, should be housed in Chapter Nine of the Constitution so as to give it a guarantee of independence and a measure of security of tenure of office. It would be, in essence, the best practice solution to putting in place an anti-corruption entity capable of satisfying all of the STIRS criteria laid down by the Constitutional Court in 2011. This decision was made in the second Glenister case in a manner that is binding on the state. While Jacob Zuma was president the judgment was criticised, evaded and not implemented. Now that “cleansing” is the order of the day, the bad habits of the previous administration can be swept aside and the proper respect, due to findings of courts, implemented.

It is risible to imagine that, in a country in which the ministers of police and justice have the known baggage of our two incumbent ministers, it will be possible for a mere civil servant with the powers of the NDPP to reverse the rot and to restore the proper administration of justice in a manner that respects the principle of equality before the law, the tenets of the rule of law and the presumption of innocence that accused persons enjoy until they are found guilty by an impartial court of law.

The compromising of the NPA and its leadership in the Zuma years, especially the undermining of its independence, has indeed politicised the functioning of the criminal justice administration. In relation to grand corruption, the removal of investigative powers from the NPA has crippled its efficacy. The capture of Hawks leadership led to nefarious abominations such as the persecution of Pravin Gordhan for political purposes. The NPA played a leading role in the charade. The perpetrators, excluding Shaun Abrahams, are still on its staff.

The desire to clean up the act of the NPA clearly burns bright for Shamila Batohi. She was a sprinter at school, we learn from the breathless media. She is going to have to get out of the starting blocks first as regards grand corruption. She is going to have to take politically unpopular decisions involving the fate of the two ministers with whom she has met in recent days and with whom she might be required to work in future. If she thinks she can get it right with the two current incumbents in place, let’s hope she has that magic wand to wave over their heads. If the president genuinely wishes to “join hands and cleanse” in collaboration with his new NDPP, the first thing he should do is redeploy his ministers of justice and police in roles that have nothing to do with the administration of criminal justice. It is deplorable that the president has been so poorly advised on his Cabinet choices as to keep the Zuma minister of justice and to promote Cele to the minister of police. No sane observer can infer from these decisions that he is serious about getting on top of the corrupt among us. A squeaky-clean Cabinet with a squeaky-clean leadership in the NPA may not be enough to solve current dysfunction.

The poor structure and dismal operations of the system since the demise of the Scorpions are at the heart of the issue. It will not help to legislate the return of the Scorpions as their tenure of office was too precarious to be regarded as secure (which is what the courts require). It is legally impermissible to create some informal body to do the work of the Scorpions. Indeed, what Willie Hofmeyr chooses to refer to as the “administrative arrangement” named the Anti-Corruption Task Team, which involves several entities which, between them, have never properly performed the task the team’s name suggests, is also illegal. This is the position in law, as its creation second-guesses the decision of Parliament in regard to the responsibility of the Hawks to deal with corruption as a priority crime. Tackling those involved in grand corruption is the first order of business for Batohi. She cannot wait for commissions of inquiry to report, she cannot turn a blind eye to those in the leadership of the ANC who cruise around with the stench of corruption in their trail, and she cannot rely on the Hawks to investigate to the standard required by the courts. Caught between a rock and a hard place, Batohi will have to consider structural and operational reform of the laws governing the fight against the corrupt.

She will have to deal with dockets that have been gathering dust for years. She will have to find the staff to do it all. She will have to prune judiciously in her upper management ranks. She deserves public goodwill and support for rapid and decisive unpopular decisions she has to take. Who would want the job she has taken? DM

Paul Hoffman SC is a director of Accountability Now and the author of Confronting the Corrupt

Opinionista • Paul Hoffman • 3 February 2019 • Daily Maverick

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