The structure of the NPA has rendered it vulnerable to abuse of capture by the government due to a variety of factors, writes Paul Hoffman.
In the scheme of the Constitution, the National Prosecuting Authority (NPA) falls under Chapter Eight between the six independent Chapter Nine Institutions, which all report to Parliament and the departments of state, which all report to the executive branch of the government and are under the executive control.
While the NPA is enjoined to prosecute "without fear, favour or prejudice", its institutional independence is questionable.
It has, as its accounting officer, the Director-General of Justice and the Minister of Justice, who has "final responsibility" over the NPA and must, constitutionally, concur in the prosecution policy which the leader of the NPA - the National Director of Public Prosecutions (NDPP) - is responsible for devising.
The NDPP is indeed the only civil servant with the power to create policy.
Usually, that is the task of the minister in charge of any department of state. It is the task of the department to administer the policy so made.
In these circumstances, it is fair to describe the NPA as "neither fish nor fowl", meaning that it is difficult to categorise or classify it in the greater scheme of things in our constitutional order.
Some founders of the new constitutional order have put up their hands to say "mea culpa" about this blemish in our otherwise commendable Constitution.
Compromises worked out late at night under time pressure, and on the assumption that all presidents would be as good as Madiba, tend to come back to bite - or peck.
The difficulty is that the structure of the NPA has rendered it vulnerable to abuse of capture by the executive branch of government in various ways, ranging from poor choices of leadership, resource constraints, interference in decision-making and unsatisfactory appointment processes.
The sad truth is that no NDPP has seen out his term of office.
Courts have ruled that both Menzi Simelane (deployed to impose "the vision of the ANC" on a supposedly independent institution of state) and Shaun Abrahams were irregularly and invalidly appointed.
Bulelani Ngcuka succumbed to dirty political trickery aimed at sweeping him out of Jacob Zuma's way, while Vusi Pikoli was suspended by Thabo Mbeki for going after Jackie Selebi, the crooked police commissioner, and then dismissed for being willing to charge Jacob Zuma after the latter's financial advisor was sentenced to 15 years for corrupting Zuma.
Pikoli won a huge settlement and a clean bill of health in the ensuing litigation, but he did not get re-instated.
Mxolisi Nxasana was bribed by Zuma to leave after less than two years in office. Zuma was fearful that Nxasana would charge him with various crimes.
Their deal has been ruled invalid, but the criminal consequences remain unaddressed due to the weaknesses in the NPA.
A short, sharp economical trial of Zuma would be more efficient than the drawn-out process currently faltering into the starting blocks of a trial that will take years.
The structural flaws in the design and reporting lines of the NPA have clearly impacted on its operational capacity.
The closure of the Scorpions, an NPA unit, despite doughty efforts to prevent it, ruined the esprit d'corps of many in the prosecution service.
The Zuma era "hollowing out" of the NPA and the planting of what Hermione Cronje calls "saboteurs" in the ranks of the NPA have served to cripple its capacity to fight state capture.
President Ramaphosa has resorted to proclaiming the Investigating Directorate, led by Cronje, a unit of questionable constitutionality (the investigation of corruption, in law, is the sole preserve of the Hawks), but this is no more than a temporary band-aid solution.
Shamila Batohi, the current NDPP, has asked Parliament to consider reforms that will inevitably involve constitutional amendments to relieve the NPA of the baggage that the executive has with which to burden it.
A reporting line directly to Parliament, a multi-party body, is surely preferable to the "final responsibility" of the Minister of Justice.
Getting rid of an accounting officer, who is a functionary in the Department of Justice, would also help assert the necessary independence of the NPA.
While reforms of this kind will bring immediate and welcome structural relief, it ought not to be imagined that operational improvement in the fight against the grand corruption, which is crippling the country, is possible in the short or medium term within the NPA.
Dealing with grand corruption
The current problem facing the NPA is its inability to deal with grand corruption in its various manifestations in SA.
That problem is insurmountable for the NPA, with or without the reform Batohi craves.
The puny and compromised response will continue for many years if countering grand corruption remains the task of the NPA.
The saboteurs will continue to make dockets disappear and run interference on otherwise sound prosecutions. The former and current Cabinet members who belong in prison will continue to lead charmed lives with impunity.
The saboteurs will do that which they were deployed to do, namely, protect the crooks by whom they were deployed.
This strategy is the crooks' illegal form of insurance against being prosecuted at all. The strategy is in place in order to allow the corrupt to continue to enjoy the loot of grand corruption with impunity, which is currently the ongoing order of the day in SA.
The widespread "covidpreneurism" illustrates the ongoing nature of the problem as well as the depths of depravity to which the corrupt are prepared to sink.
The reform that is needed most urgently to end the culture of grand corruption with impunity is the creation of constitutionally compliant anti-corruption machinery of state to deal with grand corruption.
The ANC has worked this out already.
Its NEC resolved during the first weekend of August 2020 to call upon Cabinet to establish a new stand-alone, independent and permanent agency to "deal with" the corrupt.
Nothing has been heard since, at least in public, regarding the implementation of the resolution. Presumably the matter is receiving internal behind-the-scenes attention, both in Cabinet and Luthuli House.
Possibly it has been shelved. Perhaps it was not seriously intended. Probably it was so resolved to relieve the heat generated by the trending #voetsekANC hashtag.
The lack of urgency and the possible lack of political will within the ANC should not deter its alliance partners, the loyal opposition and all of civil society, business and the faith-based sector from insisting on the reform so urgently required to end corruption with impunity.
The best practice means of implementing the NEC resolution is to establish a new Chapter Nine Institution to take the fight to the corrupt. With a clearly defined mandate, a cut-off point at which petty corruption ends and grand corruption begins, and sharp division from matters better dealt with by the police and the NPA, it will be possible for the new agency to recruit the best available talent, vet all recruits carefully and train them to take the fight to the corrupt.
Their security of tenure of office within the sheltering structures of Chapter Nine will embolden and empower recruitment of the best talent available.
The revamped NPA, freed from its corruption-busting role, can remain within Chapter Eight shod of executive influence, interference and control.
Without the millstone of grand corruption hovering over it, the NPA could tackle gender-based violence, murder, robbery and other common law crimes with renewed vigour and concentrated purpose.
It has every prospect of doing these tasks well within a reasonably short period of rebuilding. The "saboteurs" will become irrelevant as they will have no role in corruption-busting or in distracting the corruption-busters.
If the ANC government decides not to reform along these lines, then it is up to the opposition to turn corruption-busting into a major election issue, not a vague complaint or a pretext for a protest with no proper focus other than justified anger over the impunity of the corrupt.
The fear of losing an election has a wonderful capacity to concentrate the minds of politicians. Establishing the capacity for countering corruption, a crime against the state and the poor, ought to be the defining issue of the day.
- Paul Hoffman is a director of Accountability Now.
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