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South Africa: Prosecution of politicians will be a test of integrity for NPA

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Picture Credit: Ayanda Ndamane / African News AGency (ANA) – South African National Director of Public Prosecutions, advocate Shamila Batohi.

By Professor Bheki Mngomezulu

Following the new political dispensation in South Africa, which was ushered in by the first ever democratic election on 27 April 1994, a need arose to reconfigure a number of pre-existing state institutions so that they could be in line with the changed political environment.

This was after the demise of apartheid which had strangled the black majority of this country for over four decades since the ascendance to power of the National Party government in 1948 under Dr DF Malan.

Similarly, there was also a logical need to establish new institutions that did not exist under the apartheid regime for one reason or the other. Their role was to contribute towards democratic consolidation. This was deemed necessary so that the country could not regress after so many years of struggle which saw a number of liberation fighters and ordinary people losing their lives in the hands of the apartheid operatives.

These new institutions were adequately captured in Chapter 9 of the Constitution of the Republic of South Africa (Act 108 of 1996) and have since been referred to as ‘Chapter 9 institutions’ for ease of reference. Among them are the following: The Independent Electoral Commission (IEC), Commission for Gender Equality (CGE), South African Human Rights Commission (SAHRC), the Public Protector and a few others.

Within this context, in 1998, the National Prosecuting Authority (NPA) was also established with its headquarters physically located in Pretoria (now known as Tshwane). According to Section 179(2) of the Constitution, the NPA is charged with the responsibility “to institute criminal proceedings on behalf of the state and to carry out any necessary functions incidental to instituting criminal proceedings.”

Picture Credit: Thobile Mathonsi/African News Agency (ANA)

In discharging its duties, the NPA is obligated to treat all citizens of the country in the same manner and to follow all the constitutional prescripts in a non-partisan manner. In particular, Chapter 2 Section 9(1) of the Constitution states categorically clear that “everyone is equal before the law and has the right to equal protection and benefit of the law.” This is in addition to many other rights enshrined in the Constitution, especially the Bill of Rights.

Implicit in this constitutional imperative is the embedded view that the NPA cannot be selective or biassed when investigating cases on behalf of the state. As such, whether one is a politician, a reputable business person or an ordinary citizen, the same legal procedure should be followed by the NPA when conducting its investigation on any allegation.

But the ideal situation and the reality on the ground do not always meet. For example, more than two decades since the establishment of the NPA, concerns have been raised by the general public that this institution has not lived up to expectations. The indictment is that it does not treat all the citizens in the same manner as the law prescribes. According to this accusation, the NPA seems reluctant to prosecute high-ranking politicians.

In 2019, the NPA is on record for having admitted that political interference by senior politicians in government has been the cause of delays in the prosecution of apartheid era crimes. This was confirmed in an affidavit deposed by the NPA’s Torie Pretorius who is the Head of Priority Litigation Crimes Unit (PLCU). Having come to this realisation, one would have expected that by now the situation would have changed significantly.

In March 2022, the NPA again admitted through its head advocate Shamila Batohi that there was no political will within the law enforcement agencies to prosecute high-level cases before 2019.

Whether the situation has changed since then remains the subject for debate.

On 16 May 2022, an article by Heinrich Stiftung argued that a combination of questionable decision-making, poor leadership and political interference have collapsed public trust in the NPA. He averred that the current leadership is yet to make any significant change in addressing the wrongdoing that has left the NPA vulnerable. Given this observation, can the NPA be trusted that it will prosecute high-profile cases involving politicians? This is a difficult question.

To redeem itself and its public image, the NPA has vowed to act in accordance with the law. Surely, this commitment cannot be immediately confirmed.

Failure by the NPA to act on 54 State Capture cases referred to it by the Special Investigating Unit (SIU) confirmed the concerns raised by members of the public and other interested parties.

As things stand, the Zondo commission into State Capture made 358 recommendations to be acted upon. Among these recommendations is the call for relevant authorities (including the NPA) to act on these recommendations. The question becomes: is the NPA ready to redeem its image? If so, how will it achieve this goal? The integrity of the NPA is in its own hands!

Mngomezulu is Professor of Political Studies and International Relations at the University of the Western Cape.