SA’s next prosecution head: how to ensure a sound appointment
Although Shamila Batohi’s selection followed a more participatory route, the process remains opaque and centralised in the Presidency.
With National Director of Public Prosecutions (NDPP) Shamila Batohi set to retire in early 2026, South Africa has a critical opportunity to reform the flawed process for appointing the chief prosecutor. The selection of Batohi’s successor must begin urgently – not only to ensure continuity and institutional stability, but to secure the legitimacy of the appointment.
In a nation battling entrenched corruption, widening inequality and one of the highest violent crime rates in the world, strong and independent public institutions are indispensable. Among the most powerful of these is the National Prosecuting Authority (NPA).
The NPA decides who faces prosecution and who does not, whether they are powerful elites or ordinary citizens. Together with the police, it forms the frontline defence against impunity. When the NPA falters, the consequences are profound – public confidence erodes, criminality festers and the social contract unravels.
Since its founding in 1998, the NPA has seen a troubling degree of instability at the NDPP level. No permanent head has served a full 10-year term, and several appointments have been mired in controversy or overturned by the courts.
Since its founding in 1998, the NPA has seen a troubling degree of instability at the NDPP level
In 2007, Vusi Pikoli was suspended after clashing with the justice minister and the president over prosecuting then national police commissioner Jackie Selebi. In 2012, the Constitutional Court overturned Menzi Simelane’s appointment as irrational. Shaun Abrahams’ tenure was cut short after the same court ruled his appointment invalid in 2018.
This revolving door of leadership has weakened the NPA’s credibility and institutional memory, stunting long-term prosecutorial capacity. Reform of the appointment process is urgently needed to ensure the integrity of the criminal justice system.
At present, the process of selecting the NDPP is opaque and centralised in the Presidency, with few safeguards. This concentration of power is at odds with the need for institutional independence and public accountability.
Fortunately, a more transparent and inclusive process is both feasible and constitutionally sound. Plus, there are precedents to follow. Parliament already uses open procedures to appoint Chapter 9 institution heads such as the Public Protector and Auditor-General. The Judicial Service Commission shows how diverse panels can help uphold merit, fairness and independence in senior appointments.
Even the current NDPP was selected through a more participatory process than before. In 2018, President Cyril Ramaphosa convened a panel chaired by the then energy minister and former justice minister Jeff Radebe, comprising the Auditor-General, the Human Rights Commission chair, and legal professionals. Candidate interviews were open to the media following a court order.
Fortunately, a more transparent and inclusive selection process is both feasible and constitutionally sound
International standards reinforce this direction. The United Nations Guidelines on the Role of Prosecutors call for fair, transparent appointments insulated from political interference. The Inter-American Commission on Human Rights and the Venice Commission similarly advocate for merit-based selections with meaningful public oversight.
What would a reformed appointment process look like?
It would begin with a public call for applications, setting out clear eligibility requirements and evaluation criteria. Transparency would be a guiding principle throughout. The public should know who is in the running, how candidates are assessed, and on what grounds final decisions are made.
Public participation should also be built into the process. Legal bodies, academics and civil society groups should be invited to submit questions and comments. Public interviews must become the norm, not the exception, both to bolster democratic legitimacy and to deter unfit candidates.
Above all, the process must prioritise merit. Political loyalty or insider status must not determine who leads the prosecuting authority. Candidates should be judged on their legal acumen, leadership, independence, ethical record and vision for strengthening the NPA.
An independent expert panel should lead the assessment, covering background checks, public commentary and interviews
An independent panel of experts should lead the assessment, covering background checks, public commentary and interviews. The panel should be drawn from a diverse pool, including legal professionals, judges, academics and civil society representatives acting without political influence. Hearings should be open to the public and media.
Given broader challenges in justice-sector leadership, it may be worth establishing a standing panel of independent, cross-sectoral experts to review and recommend senior appointments across the justice system.
The panel would produce a ranked shortlist. The president remains the appointing authority, but would be required to choose from the list and provide written reasons based on the panel’s assessments and public input. This does not dilute executive power; rather, it anchors it in a credible and participatory process.
Importantly, this reform does not require amending the country’s constitution. While the constitution vests appointment power in the president, the process can be regulated by ordinary legislation, specifically through an amendment to the NPA Act, which only requires a simple majority in Parliament.
This is not just about process – it is about principle. In a society burdened by low levels of accountability and high inequality, the NDPP must be appointed not in the shadows but through a transparent, principled process. South Africans deserve a chief prosecutor chosen not for loyalty to power but for their integrity, independence and commitment to justice.
Exclusive rights to re-publish ISS Today articles have been given to Daily Maverick in South Africa and Premium Times in Nigeria. For media based outside South Africa and Nigeria that want to re-publish articles, or for queries about our re-publishing policy, email us.
