The clock is ticking down on President Cyril Ramaphosa's decision on who to appoint as the country's most senior prosecutor. He was given 90 court days to select a National Director of Public Prosecutions (NDPP) which takes us to around 21 December.
It's an enormous decision with far reaching implications and Ramaphosa has taken the step of consulting widely, which is wise and considered, as well as constitutional. After all, the office simply cannot be seen as politically compromised in any which way.
The president has appointed a panel which includes the General Council of the Bar, Law Society, Black Lawyers Association, National Association of Democratic Lawyers, Advocates for Transformation, Auditor General and Human Rights Commission. The most publicly recognisable name on the panel is probably that of Advocate Barry Roux, the lawyer who defended Oscar Pistorius.
This panel, which held its first meeting on Monday, will determine potential candidates, ensure they meet the required criteria, conduct interviews and recommend at least three candidates. It has also set out a timeline for all this to happen.
While ultimately, the president retains the right to appoint whomever he likes, Ramaphosa has done all the right things to ensure that the selection of the new NDPP is seen to be as independent and objective as possible. Except for one thing.
Inexplicably, the president has tasked the current Minister of Energy Jeff Radebe with heading up the panel. Radebe was Minister of Justice and Constitutional Development for the period of 2009 to 2014 and it was during this time that the political capture and infighting at the National Prosecuting Authority (NPA) was at its most dire.
He oversaw the period when a politically motivated cabal seized control of the institution and protected their friends from prosecutions, when crucial cases ground to a halt and when good, capable prosecutors were hounded out from the organisation. He allowed the evisceration of the prosecuting authority to be carried out unabated and in some instances, was himself actively complicit in questionable conduct.
Minister Radebe allowed political meddling at an organisation that should be fiercely devoid of any political interference whatsoever.
It is widely believed that he advanced the careers of the two most controversial NDPPs, Menzi Simelane and current deputy NDPP Nomgcobo Jiba. It was Radebe who strongly lobbied former President Jacob Zuma to appoint Simelane to the top position, despite the damning findings of the Ginwala inquiry.
Subsequently, the Constitutional Court found Zuma's decision to appoint Simelane was irrational. In fact, the court found that Ginwala's conclusions "represented brightly flashing red lights warning of impending danger to any person involved in the process of Mr Simelane's appointment" and yet Radebe thought it appropriate to recommend him to the president. That in itself is an indictment of Radebe's own judgement and legal insights.
There is also mystery around Radebe's apparent protection of Jiba. A decade ago, Jiba was suspended for secretly helping a faction in the police to arrest ex-prosecutor Gerrie Nel on trumped up charges. Despite her alleged actions against her colleague, Radebe reached a secret settlement with Jiba which saw her return to the NPA and later controversially ascend to acting NDPP.
Jiba has also been repeatedly accused of protecting former Crime Intelligence head Richard Mdluli from prosecution for corruption, fraud and even murder. But despite the mounting evidence against her for doing so, Radebe consistently backed her and even pushed for her to replace Simelane.
Then there was the embarrassing debacle of the legal advice he gave to the president around extending the term of Chief Justice Sandile Ngcobo in 2011. Radebe was confident that Zuma was on solid legal ground when he used a provision in the law to reappoint Ngcobo for another five years but a legal challenge quickly followed. Radebe was forced to backtrack, putting Ngcobo in an impossible position, forcing him to turn down the offer.
Radebe's misreading of the law effectively threatened to violate the constitutional guarantee of the independence of the judiciary.
Aside from his conduct as justice minister, there was also his troublesome tenure as Minister of Transport. Just think e-tolls, eNaTIS and Prasa.
While Ramaphosa is at pains to ensure that the appointment of the new NDPP is seen to be as untainted and clean as possible, it's his decision to allow Radebe, his brother-in-law no less, to oversee this process that is casting the most doubt over the process.
It may well be that he wanted someone he trusts implicitly to do the job and hence he turned to Radebe but in doing so he has effectively undermined his best efforts.
Allowing the process to drag on towards the deadline is also creating space for mounting speculation. Several top criminal advocates have been approached for the role and have turned it down.
Worryingly, the name of South Gauteng Director of Public Prosecutions Andrew Chauke is emerging as a potential frontrunner, despite the fact that he was the one who took the decision not to charge Mdluli with murder and plays a central role in the case which has ripped the NPA apart over the past few years. Chauke was also accused of getting payments (and a set of golf clubs) from the Kebbles, a claim he vehemently denied. A well regarded black female criminal advocate from the Johannesburg Bar and a former justice department director-general are also believed to be in the mix.
With swirling speculation around who will be the country's most senior prosecutor, it is absolutely imperative that the process to appoint the NDPP is without flaw or favour. The interviews of candidates should also be open to the media and the public, in the same way that Judicial Service Commission interviews of judicial candidates are fully transparent.
The integrity of the office has to be restored, especially now at a time when the country is waiting for courageous and fearless prosecutions of powerful individuals responsible for capturing the state. Allowing a compromised minister like Radebe to oversee this process is unfortunately casting doubt on the appointment before it is even made.
- Wiener is an investigative reporter for News24.
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