Magazine article New African

A Poisoned Chalice: The Dilemma of Public Prosecutors

Magazine article New African

A Poisoned Chalice: The Dilemma of Public Prosecutors

Article excerpt

The National Director of Public Prosecutions is a crucial post in the South African justice system. As Pusch Commey reports, if the woes of the past post-apartheid holders of this critical post are anything to go by, you are damned if you do, and damned if you don't, in the execution of this role.

It is a job that comes with great powers, and yet it is also the most unenviable in the country--just ask Mxolisi Nxasana, the embattled current National Director of Public Prosecutions, who is under pressure to either resign his post or have president Jacob Zuma firing him, on grounds that there were lapses in his security clearances for his appointment. He has admitted that he did not disclose that he was acquitted for murder in 1985, but argues that he did not have to disclose that.

But it is not the first time that the NDPP's office has been rocked. Since 1999, when then President Thabo Mbeki reformed the offices of Attorney Generals of four provinces and created the unified and powerful National Directorate of Public Prosecutions, the department's head, the National Director, has known no peace.

However, what is undoubtedly beautiful is that South Africa is a great example of "the rule of law" such that even the most powerful person in the country has to tread carefully. Unlike most countries, nobody is deemed to be above the law.

The iconic Winnie Mandela, after the advent of black majority rule stood trial for fraud. Top ANC functionary Tony Yengeni did. Zuma himself did. Jackie Selebi did. A judge, Justice Motata was charged and convicted of drunk driving in a magistrate's court. Currently Julius Malema, the enfant terrible of South African politics and Leader of the Economic Freedom Fighters (EFF) party is in and out of court on corruption charges. The rule of law is thus very much alive, putting the brakes on a culture of impunity.

But the biggest issue left to tackle is whether justice is selective. And that is the decision to prosecute or not to prosecute, which lies at the doorstep of the National Director of Public Prosecutions. For that and many other reasons, there have been complaints about the manner in which the powerful National Director of Public Prosecutions is appointed. Currently, it is the President's prerogative, as long as such a person is fit and proper.

There have been suggestions that the same procedure used to appoint judges should be applied. With judges, a Judicial Services Commission drawn from various bodies interviews well-qualified candidates. A shortlist of five is presented to the president of the country to make a choice. In that way the president cannot impose political appointees and override conflicts of interest.

But as things stand in South Africa, the office of the National Director of Public Prosecutions is a poisoned chalice filled with a deadly cocktail of multiple interests: race, business, social, socio-economic, you name it; and the most fatal of them all, politics.

Its first director, Bulelani Ngcuka, appointed by former President Thabo Mbeki, was by all accounts a competent man. True to the mission of his office, he directed prosecutions without fear or favour, as required by the Constitution. However from 2005 things came to a head during political skirmishes between Thabo Mbeki and his then deputy Jacob Zuma in what has been termed "the battle for the soul of the ANC".

Shabir Shaik, a Zuma confidante, had been fingered in a corruption scandal. Shaik was found guilty. Zuma, who was in pole position to become president of the ruling African National Congress (ANC) and the country, was dismissed by Mbeki as deputy president. His supporters cried foul, alleging that Thabo Mbeki was using State institutions, more especially the Office of the National Director of Public Prosecutions, for political purposes. Zuma managed to drag out the corruption case in court.

Come Polokwane 2007, Zuma mobilised members of the ANC, and rode a cresting wave of victimhood and sympathy within the ANC to defeat Thabo Mbeki for the all-powerful presidency of the ANC at the party conference, and the inevitable eventual presidency of the country. …

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