Whither Integrity and Independence in the NPA?
South Africans were shocked when the National Prosecuting Authority charged 270 Marikana mineworkers with the murder of their 34 colleagues. The charges were dropped shortly thereafter, which lends credence to growing concern that the senior leadership of the NPA has ceased to act independently.
Hamadziripi Tamukamoyo, Researcher, Crime and Justice Programme, ISS Pretoria
Amid nationwide
shock, South Africa’s National Prosecuting Authority (NPA) continued courting
controversy with the ill-timed and ill-informed decision to charge 270 Lonmin
mine workers with murder after 34 of their colleagues were killed at the hands
of the police. Initially, the miners faced charges of public violence, but
these were later changed to murder and attempted murder. The lawyers for the
miners showed that they thought these charges were political in nature by
writing an open letter to President Jacob Zuma, asking him to intervene. In
their letter they also stated, ‘It is our instruction to inform you that it
would be the understatement of the century to call this turn of events bizarre
in the extreme … It is inconceivable [that] the South African state, of which
you are the head ... can genuinely and honestly believe or even suspect that
our clients murdered their own colleagues and in some cases, their own
relatives.’ This letter reflected the sentiments of many, including senior
officials of the African National Congress (ANC). A few days after an
unprecedented outcry against the NPA, and in a move that raises more questions
than it answers, controversial acting National Director of Public Prosecutions
(NDPP) Advocate Nomgcobo Jiba announced that the charges against the miners
would ‘provisionally’ be withdrawn. The initial decision to charge the miners amid
deep tension in the Marikana community in the North West and the volte face in dropping the charges lends
further credence to growing perceptions of political meddling in the affairs of
the NPA. There have been various incidents that have suggested a lack of
integrity and independence within the NPA, most notably the withdrawal of
serious criminal charges against those connected to or openly supporting Zuma. It
would seem that the root cause of the NPA’s problems is the appointment by the
president of unsuitable people, who appear to be willing to sacrifice principle
for politics, to senior positions.
In late 2011
the Supreme Court of Appeal (SCA) ruled that Zuma’s 2009 appointment of Advocate
Menzi Simelane as NDPP was ‘inconsistent
with the Constitution and invalid’. In the ruling SCA Judge Mohammed Navsa
noted that, ‘The minister and the president both
made material errors of fact and law in the process leading up to the
appointment of Mr Simelane.’ He further stated that, ‘It is clear that the
president did not undertake a proper inquiry ... On the available evidence, the
president could not have reached a conclusion favourable to Mr Simelane, as
there were too many questions concerning his integrity and experience.’ It is embarrassing
for the President to be publicly questioned about his selection of an
individual of questionable integrity to head a critically important institution
such as the NPA. Individuals of questionable integrity are unlikely to engender
public trust and will be seen to be serving the interests of powerful if, for
instance, they withdraw criminal cases against high-level government officials
and politicians.
Indeed, there
were accusations of political meddling when former NDPP Bulelani Ngcuka made
the controversial statement in 2003 that even though there was a prima facie case of corruption for Zuma
to answer to, the NPA was not going to prosecute as it felt the case was not
winnable. This despite the fact that Shabir Shaik was convicted and sentenced
to 15 years for corruption involving Zuma. Again in April 2009, when then acting director of the NPA Mokotedi Mpshe dropped
criminal charges of corruption, fraud, money laundering and racketeering
against Zuma, many people suspected that the reasons were primarily political
in nature. The NPA’s credibility took a huge knock both when Mokotedi said the
reason for his decision was not based on the merits of the case, meaning the
evidence against Zuma, but because of untested and illegally obtained crime
intelligence tapes, and when it emerged that he had plagiarised an overturned
Hong Kong court judgement to explain his argument.
Another case that raises concern is that of former South African Police
Service (SAPS) crime intelligence boss General Richard Mdluli. Following a
painstaking investigation by the Hawks that required seven people to be placed in
the witness protection programme, the NPA decided to charge Mdluli with a
number of very serious crimes, including murder, attempted murder, assault,
defeating the ends of justice and corruption. The Mail and Guardian (3–9 February 2012) reported that following closed-door
representations from Mdluli’s lawyers, the NPA had a change of heart and
withdrew all charges. Mdluli claimed that the charges against him were
politically motivated and amounted to the abuse of the criminal justice system
by unnamed powerful and politically connected individuals. Interestingly, in
his bail hearing, Mdluli admitted to using police resources to spy on senior
ruling party politicians who he stated were seeking to remove Zuma as president
of the ANC. He claimed to have approached Zuma in October 2011 with a report on
this group and hence, he argued, the conspiracy to remove him from his post. However,
the NPA did not think that the best place to test this unlikely defence would be
in court. This decision became even more puzzling when a later investigation
ordered by the Minister of Police revealed that there was no evidence of a conspiracy
against Mdluli. Interestingly, Mdluli had supported Jiba after she was
suspended from the NPA for allegedly abusing her power to derail the
prosecution of former SAPS National Commissioner Jackie Selebi. Earlier this
year the president expunged the criminal record of Jiba’s husband, Booker
Nhantsi, who had been found guilty of embezzlement. Recently, following a
closed-door deal, the NPA dropped serious corruption charges against two senior
KwaZulu-Natal politicians who are known supporters of a second Zuma presidency
Another instance
where political considerations seemed to trump the rule of law was the disbanding of the Directorate of
Special Operations (DSO) or Scorpions, a
highly effective corruption-busting unit located in the NPA. The
Scorpions were replaced by the Hawks and relocated within the SAPS, a move
later found to be unconstitutional.
Increasingly, questions are being asked whether the NPA is adhering to
its mission, which states that, ‘Guided by the
Constitution, we in the National Prosecuting Authority ensure justice for the
victims of crime by prosecuting without fear, favour and prejudice and by
working with our partners and the public to solve and prevent crime.’ For the
criminal justice system to be seen as transparent and fair, it is critical that
the public trust the NPA to treat all people fairly. Internationally, confidence
in the criminal justice system is critical to the country’s desirability as an
investment destination.
The recommendations by the
National Planning Commission that an independent body undertakes the task of appointing
the National Police Commissioner are highly appropriate for the position of the
NDPP. It is critical now more than ever that an independent review is
undertaken of the senior appointments to the NPA in recent years and the
decisions they have taken in controversial cases. A system then needs to be put
in place that ensures all future appointments are made solely on merit,
competence, experience and demonstration of integrity and independence.
