Crime Intelligence Head Saga Reveals a Growing Threat to the Rule of Law in South Africa
Disturbing allegations of a cover up affecting the SAP and the NPA bodes badly for the rule of law in South Africa.
Gareth Newham, Head of the Crime and Justice Programme, ISS Pretoria
For the past few
weeks, South Africans have been subjected to a number of disturbing media
reports alleging political interference to cover up corruption affecting the
highest levels of the South African Police Service (SAPS) and the National
Prosecuting Authority (NPA). That these
ongoing allegations have not been dealt with in an accountable and transparent
manner bodes badly for the future of the country’s criminal justice system. The
saga of this disturbing episode also sheds light on the nature of an emerging
threat to the rule of law in South Africa.
Two months after
Jacob Zuma was sworn in as president of South Africa on 9 May 2009, Richard
Mdluli, was appointed as the national Head of the SAPS Crime Intelligence
Division in the post of a Lieutenant-General.
This placed him in one of the most powerful positions in the SAPS
allowing him to oversee and direct the state’s capacity to gather both
real-time and historical information on virtually any individual in the
country. It then emerged that Mdluli’s appointment had been irregular as it was
the result of inappropriate political interference. The SAPS Act of 1995
(chapter 4, section 6) requires that the National Commissioner appoint the deputy
national and divisional commissioners. However, then Acting National
Commissioner at the time, Lieutenant-General Tim Williams, revealed that
Mdluli, was appointed by a panel consisting solely of four cabinet members
without any police officials or experts on crime intelligence being present.
The Mail and Guardian has reported that
Mdluli was appointed to this position because he assisted President Jacob Zuma escape various criminal charges. In
particular, Mduli was alleged to have played a key role in the illegal leaking
of confidential crime intelligence tape recordings to Zuma’s criminal defence
lawyers. The tapes purported to be of
the then NPA’s Head of the Directorate of Special operations (also known as the
Scorpions) Leonard McCarthy allegedly discussing when to reinstate charges of
corruption, money laundering, fraud and racketeering against Zuma with the
ex-head of the NPA Bulelani Nguka. These
tapes were made while Mdluli was the head of SAPS Crime Intelligence in the
Gauteng Province and was allegedly paying a leading role in a police campaign
to derail the corruption investigation and prosecution against then SAPS
National Commissioner, Jackie Selebi.
The tapes were later used by then acting National Director of Public
Prosecutions (NDPP) Mokotedi Mpshe to controversially withdraw 783 criminal
charges against Zuma paving his way to assume the position of President of the
Republic of South Africa. Zuma, through his spokesperson has denied that he had
anything to do with the appointment of Mdluli.
During September
of 2011, Mdluli was investigated by the elite Directorate of Priority Crime
Investigations (also known as the Hawks) and charged with separate cases of
murder and corruption. During his bail hearing Mdluli argued that the charges
against him were motivated by a political conspiracy against him because he was
seen as close to Zuma. To support this claim, he handed as evidence before the
court a ‘ground intelligence report’, providing details about various senior
ANC politicians. The report claimed that these leaders had held a meeting to
discuss removing Zuma as party president at the upcoming 2012 ANC National
Conference. Mdluli also handed to the court a letter he had written to Zuma
requesting his assistance dated 11 November 2011, claiming that the criminal
charges were as a result of a conspiracy against him by junior intelligence
officers who had been aligned to previous president Thabo Mbeki.
The evidence
before the court in Mdluli’s bail hearing, raises the concern that either most
powerful SAPS Divisional Head or other officers were abusing their official
police position and state resources with regards to internal matters of the
ruling political party. A month after President Zuma received Mdluli’s letter,
the NPA controversially withdrew the criminal charges against Mdluli and
forwarded the docket to the Inspector General of Intelligence, Faith Radebe.
What made this a
particularly controversial decision is that the NPA had commissioned an
independent legal opinion, which found that there was sufficient evidence to
criminally prosecute Mdluli. Moreover, the Mail
and Guardian reported on a letter written by Radebe, on 19 March 2012 that
stated, “We are of the opinion that the reasons advanced by the NPA in support
of the withdrawal of the criminal charges are inaccurate and legally flawed. We
therefore recommend that this matter be referred back to the NPA for the
institution of criminal charges.”
The NPA refused
to recharge Mdluli, stating that in their opinion there was insufficient
evidence to charge him. This in spite of various recommendations to the
contrary. Unfortunately, the NPA is already under a cloud following a range of
controversial appointments to the senior echelons of the agency. The Supreme
Court of Appeal unanimously ruled that President Zuma’s appointment of Menzi
Simelane as the NDPP, was “irrational” considering the substantial evidence
available that he was not a fit and proper person for this important position.
Nevertheless, Zuma then appointed another tainted individual as the acting
NDPP, Advocate Nomgcobo Jiba. Jiba’s credibility had been severely undermined
following her suspension from the NPA pending a disciplinary hearing on charges
of unprofessional conduct, dishonesty, fraud and bringing the NPA into
disrepute in December 2007. This was in relation to her role in assisting the
police obtain a warrant of arrest against Advocate Gerrie Nel, the lead
prosecutor in the Selebi corruption case.
This attempt to
interfere in the Selebi case was slammed by the High Court. Although suspended,
Jiba had managed stay the disciplinary hearing against her by launching various
court applications. During one of these legal challenges, Mduli had testified
as a character witness on her behalf. Eventually, those leading the charges
against her left the NPA and she was allowed to keep her job in a settlement in
which she paid the NPAs costs. Current
concerns about the credibility of the acting NDPP are that Jiba may feel a
substantial degree of indebtedness to Zuma. Not only had Zuma overlooked Jiba’s
chequered past when he appointed her to head the NPA, but he also used his
presidential authority to expunge her husband’s, 2005 criminal conviction for
stealing R193 000 from a clients trust while he was a practicing attorney.
In addition to
the criminal charges against Mdluli, a subsequent separate internal SAPS Crime
Intelligence investigation found evidence alleging that he was directly
implicated in widespread theft and corruption involving the SAPS Secret
Services Account. Allegations in the report included that Mdluli had
irregularly employed at least 23 family members and friends, misused state
vehicles, safe houses and state funds for his own benefit in addition to a range
of other corrupt activities. Many were surprised when it was reported that the
head of the Hawks, Lieutenant-General Anwar Dramat, had suddenly halted all
criminal investigations into Mdluli and other members of the SAPS Crime
Intelligence Division, allegedly on instruction from the current Acting
National Commissioner, General Nhlanhla Mkhwanazi.
The City Press then published a report
alleging that Mkhwanazi had received an instruction from the Minister of Police
Nathi Mthethwa, to cease all investigations into Mdluli and to reinstate him to
the SAPS National Head of Crime Intelligence. This past weekend, the City Press reported that that the
Minister of Police himself is alleged to have illegally benefited from the
Secret Service Account which was used to pay for R195 500 worth of renovations
to the Ministers private residence. The Minister has publicly denied all
allegations and stated that he would be requesting that the Auditor-General investigate
these allegations.
Richard Mdluli is
now back in his post with a large number of serious allegations hanging over
his head, and the heads of the NDPP and the Minister of Police. All processes to examine any evidence
supporting the allegations in an open and accountable manner have been halted
without adequate explanation. The only official statement from the SAPS is that
this is an internal matter and no further comment will be forthcoming.
The many honest,
hard working police men and women who place their lives on the line fighting
crime need to trust that those leading them are beyond reproach. Similarly,
those who take to the courts each day to prosecute criminals in the interest of
justice need to feel pride in their institution and what it represents. The
only way to sort through the various allegations affecting those that are meant
to lead the criminal justice system is for an independent judicial commission
of inquiry to test the evidence behind the allegations in a transparent and
fair manner. In this way, those that may have abused their positions can be
identified and measures taken to prevent reoccurrence. This will restore faith
in the criminal justice system. However, if these allegations are left unchallenged
it will severely damage public trust in those in charge of the criminal justice
system, and then without a doubt, the principle of the rule of law in South
Africa is in deep trouble.
