Appointing a new Prosecutions Chief - the opportunity to reclaim integrity
As President Jacob Zuma finalises his cabinet appointments following the investiture of a new Parliament, he must turn his focus to non-ministerial vacancies in those institutions designed to safeguard constitutional democracy in South Africa.
As President Jacob Zuma finalises his cabinet appointments following
the investiture of a new Parliament, he must turn his focus to
non-ministerial vacancies in those institutions designed to safeguard
constitutional democracy in South Africa. The ongoing leadership
vacuum in the National Prosecuting Authority (NPA), following the
dismissal of Advocate Vusi Pikoli, is one such vacancy that requires
urgent but considered attention from the executive and newly elected
Parliament.
Last February, former South African President Kgalema Motlanthe
asserted that the appointment of the National Director of Public
Prosecution (NDPP) must not remain the sole province of the president.
To de-politicize a process beset by public suspicion, he argued, the
Judicial Service Commision (JSC), not the president, should select the
candidates for his consideration.
The momentary stir his remarks created has long subsided,
overshadowed by Acting-NDPP Mokotedi Mpshe’s decision to withdraw the
pending criminal charges against now President Jacob Zuma. Yet the
fallout from Mpshe’s decision, and the circumstances that prompted it,
only magnify the urgency with which the incoming Minister of Justice
should accept Motlanthe’s tacit challenge and propose draft legislation
to reform the appointment process. Before the new president anoints
Mpshe’s successor.
This call for reform is no mere referendum on Zuma’s personal
capacity to choose a candidate. The problem is systemic, and public
ire hardly limited to Zuma critics. Since Mpshe’s announcement, the
NPA has faced a torrent of criticism from across the political
spectrum, with some accusing Mpshe of caving to ANC pressure and others
citing the purported collusion between Leonard McCarthy and Bulelani
Ngcuka as evidence of the NPA’s anti-Zuma bias.
Yet the fact that disenchantment with the NPA’s perceived
politicking transcends party lines may signal a unique opportunity for
reform. Call it unity in disillusion, but the multi-party nature of
recent critiques might potentially shield calls for oversight of the
NDPP appointment process from partisan reproach. Or at least imbue
those calls with enough credibility to broker substantive debate.
At present, the President faces scant oversight in choosing an
NDPP. The Constitution establishes his appointment authority, yet
offers few restrictions save that his selection be “appropriately
qualified.” The NPA Act, for its part, outlines more specific criteria
for the removal of an NDPP, directing the President to obtain
Parliament’s approval after provisionally suspending his chief
prosecutor. Yet it too remains largely silent on the appointment
process itself.
Conspicuously, in fact, the law requires neither that the president
consult, seek consent from, nor vet his candidate with anyone else.
As Motlanthe himself iterated, there exist “no normal procedures” to
guide the process.
Why should this framework, or lack thereof, warrant concern? With
so many other controversies competing for our attention, restructuring
the NDPP selection process to include the JSC may not earn top billing
among the public’s demands. It is, however, precisely because of the
NPA’s central role in these controversies that the country can ill
afford to ignore calls for enhanced transparency. Heeding those calls
might help restore confidence in the integrity of the office and
provide the NDPP increased capital to prosecute without fear, favour,
or concern that his every move may “signal” loyalty to one camp or the
other.
Against this backdrop, Motlanthe’s call for the JSC’s involvement appears if not prescient, at least pragmatic.
First, the sheer breadth of the twenty-three person body may deflect
accusations that it lies beholden to one political interest. Chaired
by the Chief Justice of the Constitutional Court, it draws membership
from all three branches of government and includes outside academics
and lawyers among its ranks. While the President may still select four
members of his choosing, most others – including four lawyers, one
academic, one judge-president and ten legislators – are chosen by their
respective bodies or professional associations (the Chief Justice,
President of the Supreme Court of Appeal and Minister of Justice
receive automatic seats). And of the six national assembly members on
the JSC, at least three must hail from opposition parties.
Second, the JSC already bears responsibility for culling the
shortlist of candidates from which the President must ultimately select
the nation’s judges. Thus, while expanding the JSC’s mandate beyond
the judiciary may require legislation, Parliament need not create an
entirely new framework to provide oversight of the NDPP process.
Of course, placing the JSC in charge of the initial selection
process will hardly immunize the NDPP from political wrangling. If
the protracted struggle over former NDPP Pikoli’s removal offers any
warning, the appointment of the next chief prosecutor marks but half the
battle; securing his tenure in the face political pressure remains the
other. Pikoli’s swift fall from grace after pursuing ANC stalwart
Jackie Selebi on suspicion of organised criminal activity suggests
that so long as the executive and legislature remain dominated by one
party, the NDPP may lie at its mercy – in fact or appearance, both
which impugn the office’s reputation for sustained independence.
Indeed, while Pikoli too championed appontment reform, his drawn out
dismissal demonstrates that such reform must coincide with strong
checks against abuse of the removal process. The NPA Act specifies that
Parliament must reverse or ratify the NDPP’s removal within thirty days
of the president’s communication or as soon “as is reasonably
possible.” This provision should in theory ensure that the process runs
expeditiously. Yet Pikoli’s suspension dragged on for over a year
before he was officially removed – a dangerous precedent that too easily
turns “provisional” suspension into de facto termination.
Further, while Motlanthe noted that elevating the JSC’s role could
boost public confidence in the appointment process, the body remains an
enigma to many. It has garnered recent attention for presiding over
the dispute between the Judge John Hlophe and members of the
Constitutional Court over the former’s alleged attempt to influence the
Court’s rulings in the Zuma case. Yet it would be a stretch to
suggest that the body commands enough public faith to lend the NDPP an
indisputable air of legitimacy. Indeed, the public knows little of the
JSC’s own safeguards against undue influence; neither its governing
legislation nor the Constitution provides any detail on how its own
members may be removed for cause.
Nevertheless, there is no time like the present to push for
consideration of JSC’s enhanced role in the appointment of the NDPP.
From a political standpoint, it affords the new government an
opportunity to score a quick victory by distinguishing itself from the
Mbeki regime with whom its leader so publicly clashed.
From a practical standpoint, if Mpshe does not remain, the incoming
NPA head will enter office facing a minefield of public scrutiny. The
fates of his predecessors already demonstrate the precariousness of
the position. To the extent the government may take even incremental
steps to enhance his legitimacy, it would be wise to do so. This may
ultimately entail enforcing stricter timelines for parliamentary debate
on the removal of an NDPP. In the interim, maintenance of the status quo
seems untenable in the face of the politicized legal dramas that have
dominated recent history. Including the JSC in the selection process
may not wholly eliminate those dramas, but it certainly constitutes an
alternative worth debating on the merits.
Chartey Quarcoo is a research volunteer in the
Corruption & Governance Programme, ISS Cape Town and a Harvard
University Sheldon Fellow
