As President Jacob Zuma finalises his cabinet appointments following the investiture of a new Parliament, he must turn his focus to non-ministerial vacancies in those institutions designed to safeguard constitutional democracy in South Africa. The ongoing leadership vacuum in the National Prosecuting Authority (NPA), following the dismissal of Advocate Vusi Pikoli, is one such vacancy that requires urgent but considered attention from the executive and newly elected Parliament.
Last February, former South African President Kgalema Motlanthe asserted that the appointment of the National Director of Public Prosecution (NDPP) must not remain the sole province of the president. To de-politicize a process beset by public suspicion, he argued, the Judicial Service Commision (JSC), not the president, should select the candidates for his consideration.
The momentary stir his remarks created has long subsided, overshadowed by Acting-NDPP Mokotedi Mpshe's decision to withdraw the pending criminal charges against now President Jacob Zuma. Yet the fallout from Mpshe's decision, and the circumstances that prompted it, only magnify the urgency with which the incoming Minister of Justice should accept Motlanthe's tacit challenge and propose draft legislation to reform the appointment process. Before the new president anoints Mpshe's successor.
This call for reform is no mere referendum on Zuma's personal capacity to choose a candidate. The problem is systemic, and public ire hardly limited to Zuma critics. Since Mpshe's announcement, the NPA has faced a torrent of criticism from across the political spectrum, with some accusing Mpshe of caving to ANC pressure and others citing the purported collusion between Leonard McCarthy and Bulelani Ngcuka as evidence of the NPA's anti-Zuma bias.
Yet the fact that disenchantment with the NPA's perceived politicking transcends party lines may signal a unique opportunity for reform. Call it unity in disillusion, but the multi-party nature of recent critiques might potentially shield calls for oversight of the NDPP appointment process from partisan reproach. Or at least imbue those calls with enough credibility to broker substantive debate.
At present, the President faces scant oversight in choosing an NDPP. The Constitution establishes his appointment authority, yet offers few restrictions save that his selection be "appropriately qualified." The NPA Act, for its part, outlines more specific criteria for the removal of an NDPP, directing the President to obtain Parliament's approval after provisionally suspending his chief prosecutor. Yet it too remains largely silent on the appointment process itself.
Conspicuously, in fact, the law requires neither that the president consult, seek consent from, nor vet his candidate with anyone else. As Motlanthe himself iterated, there exist "no normal procedures" to guide the process.
Why should this framework, or lack thereof, warrant concern? With so many other controversies competing for our attention, restructuring the NDPP selection process to include the JSC may not earn top billing among the public's demands. It is, however, precisely because of the NPA's central role in these controversies that the country can ill afford to ignore calls for enhanced transparency. Heeding those calls might help restore confidence in the integrity of the office and provide the NDPP increased capital to prosecute without fear, favour, or concern that his every move may "signal" loyalty to one camp or the other.
Against this backdrop, Motlanthe's call for the JSC's involvement appears if not prescient, at least pragmatic.
First, the sheer breadth of the twenty-three person body may deflect accusations that it lies beholden to one political interest. Chaired by the Chief Justice of the Constitutional Court, it draws membership from all three branches of government and includes outside academics and lawyers among its ranks. While the President may still select four members of his choosing, most others - including four lawyers, one academic, one judge-president and ten legislators - are chosen by their respective bodies or professional associations (the Chief Justice, President of the Supreme Court of Appeal and Minister of Justice receive automatic seats). And of the six national assembly members on the JSC, at least three must hail from opposition parties.
Second, the JSC already bears responsibility for culling the shortlist of candidates from which the President must ultimately select the nation's judges. Thus, while expanding the JSC's mandate beyond the judiciary may require legislation, Parliament need not create an entirely new framework to provide oversight of the NDPP process.
Of course, placing the JSC in charge of the initial selection process will hardly immunize the NDPP from political wrangling. If the protracted struggle over former NDPP Pikoli's removal offers any warning, the appointment of the next chief prosecutor marks but half the battle; securing his tenure in the face political pressure remains the other. Pikoli's swift fall from grace after pursuing ANC stalwart Jackie Selebi on suspicion of organised criminal activity suggests that so long as the executive and legislature remain dominated by one party, the NDPP may lie at its mercy - in fact or appearance, both which impugn the office's reputation for sustained independence.
Indeed, while Pikoli too championed appontment reform, his drawn out dismissal demonstrates that such reform must coincide with strong checks against abuse of the removal process. The NPA Act specifies that Parliament must reverse or ratify the NDPP's removal within thirty days of the president's communication or as soon "as is reasonably possible." This provision should in theory ensure that the process runs expeditiously. Yet Pikoli's suspension dragged on for over a year before he was officially removed - a dangerous precedent that too easily turns "provisional" suspension into de facto termination.
Further, while Motlanthe noted that elevating the JSC's role could boost public confidence in the appointment process, the body remains an enigma to many. It has garnered recent attention for presiding over the dispute between the Judge John Hlophe and members of the Constitutional Court over the former's alleged attempt to influence the Court's rulings in the Zuma case. Yet it would be a stretch to suggest that the body commands enough public faith to lend the NDPP an indisputable air of legitimacy. Indeed, the public knows little of the JSC's own safeguards against undue influence; neither its governing legislation nor the Constitution provides any detail on how its own members may be removed for cause.
Nevertheless, there is no time like the present to push for consideration of JSC's enhanced role in the appointment of the NDPP.
From a political standpoint, it affords the new government an opportunity to score a quick victory by distinguishing itself from the Mbeki regime with whom its leader so publicly clashed.
From a practical standpoint, if Mpshe does not remain, the incoming NPA head will enter office facing a minefield of public scrutiny. The fates of his predecessors already demonstrate the precariousness of the position. To the extent the government may take even incremental steps to enhance his legitimacy, it would be wise to do so. This may ultimately entail enforcing stricter timelines for parliamentary debate on the removal of an NDPP. In the interim, maintenance of the status quo seems untenable in the face of the politicized legal dramas that have dominated recent history. Including the JSC in the selection process may not wholly eliminate those dramas, but it certainly constitutes an alternative worth debating on the merits.
By: Chartey Quarcoo, research volunteer in the Corruption & Governance Programme, ISS Cape Town and a Harvard University Sheldon Fellow