Ramaphosa's NDPP panel: Smoke and mirrors or genuine reform?

Prof. Sipho Seepe

The usual suspects have hailed President Cyril Ramaphosa’s decision to establish “a panel for the selection of the next National Director of Public Prosecutions (NDPP)” as a testament to his commitment to openness and transparency. Nothing could be further from the truth.

The establishment of a panel is a cynical response to strident calls wanting the NDPP appointment to be done entirely by Parliament and to have “the appointment of the National Director of Public Prosecutions (NDPP) to be taken off the President’s hands” (COSATU).

For its part, the DA has proposed an amendment to the Constitution “to ensure Parliament appoints the head of the NPA – not the President – following a transparent and rigorous vetting process.”

The current process does little to dilute the presidential prerogative.

First, the panel, chaired by the Minister of Justice and Constitutional Development, Ms Mmamoloko Kubayi, comprising chairpersons of the South African Human Rights Commission, the Commission for Gender Equality, the Public Service Commission, the Auditor-General South Africa, bar representatives of the Black Lawyers Association and National Association of Democratic Lawyers, is largely comprised of individuals who are themselves Ramaphosa’s appointees.

The panel is arguably an echo chamber of individuals who have “bought into the ruling consensus.” Accordingly, there is nothing ideologically diverse about it. With Ramaphosa, it is always a case of smoke and mirrors.

Second, we have been here before. Advocate Shamila Batohi, the current NDPP, is herself the product of the proposed process. Her tenure has been widely described as underwhelming. Not mincing his words, Athol Trollip, ActionSA MP, contends: “Under Batohi’s leadership, the NPA reels from one scandal to the next. South Africans are left wondering if these failures are merely a result of incompetence or if there is a deliberate agenda to protect the corrupt.”

The NPA seems to have the appetite to prosecute those not favoured by the current establishment. The likes of Matshela Koko and Duduzane Zuma had to bear the brunt of being tried and convicted in the court of public opinion. Egged on by the mainstream media, those branded deplorables found themselves in the crosshairs of the NPA’s frivolous prosecutions.

Testimonies at the Madlanga Commission and the Ad Hoc Committee of Parliament investigating allegations of corruption, political interference, and criminality within the criminal justice system suggest that the NPA has been weaponised under the current administration.

The NPA’s reluctance to consider preferring charges against President Ramaphosa arising out of Phala Phala bolsters the argument that the current process is unlikely to produce a National Director who would act without fear or favour when it comes to those who wield enormous political power.

“See no evil, hear no evil, and say no evil” has become a modus operandi of law enforcement agencies in matters involving President Ramaphosa.

Of all the sins of omission and commission in the post-1994 dispensation, the Phala Phala scandal ranks as the most egregious, having undermined the entire democratic project. Not only was there a failure by all law enforcement agencies, but the failure extended to the broader society. The hypocrisy of non-governmental organisations and the mainstream media, all known for shouting about accountability from rooftops, was unmasked.

Many had suddenly lost their voices. Advocate Vuyani Ngalwana SC, who has frequently acted as a judge, had also approached the court to address the NPA’s seeming reluctance to charge President Ramaphosa. Ngalwana argued that the failure to charge Ramaphosa can be described as ranging from prosecutorial inertia, prosecutorial indifference, and prosecutorial insouciance to prosecutorial partiality.

Ngalwana SC argued: “You have a decision, or a recommendation of an independent panel led by no less than a Chief Justice, that finds at paragraph 264 of its report that the Applicant, prima facie, may have made himself guilty of a criminal offence under Section 34 of PRECCA. A criminal offence, and the matter goes to Parliament, and Parliament whitewashes it and says there is nothing to investigate.

"It goes to the police. The police say they are investigating. What are they investigating? There is a prima facie finding by luminaries in the field of law. All that is required to start a prosecution is a prima facie basis for the charge, not a reasonable doubt. The prima facie basis is there. But has the Prosecuting Authority taken that up to prosecute? No. Does one come to you, Justices, to review the decision of the NPA not to prosecute?”

The jury is out on whether members of the judiciary are immune to the politics of self-interest.

Retired former Deputy Chief Justice Dikgang Moseneke has cautioned against maintaining the current constitutional arrangement where powers of appointment are concentrated in the President. Moseneke argued that “the manner in which public power is allocated within it is not always optimal for advancing our democratic project.”

Moseneke continues: “As you would expect, powers of appointment are often coupled with powers of removal, albeit subject to some prescribed process… The ultimate question is how best we may shield appointments of public functionaries to institutions that gird our democracy from the personal preferences and vagaries of the appointing authority. The question may be asked differently: how best must we safeguard the effectiveness and integrity of public institutions indispensable to the democratic polity? … This uncanny concentration of power is a matter which, going forward, we may ignore, but only at our peril.”

For as long as the current arrangement remains, the prospect of having “an NDPP who would ensure that the NPA exercises its functions without fear, favour, or prejudice and should not be beholden to any vested interests, whether in politics, in business, or elsewhere” would remain a pipedream.

The challenges and vagaries relating to the exercise of powers of appointment extend to judges and members of the Cabinet. The appointment of Judge Raymond Zondo occurred despite his dismal performance in the interviews conducted by the Judicial Service Commission.

Panels on their own do not cure the concern raised by former Deputy Chief Justice Moseneke.

* Professor Sipho P. Seepe, Higher Education and Strategy Consultant.

** The views expressed do not necessarily reflect the views of IOL, Independent Media or The African.