Fellow South Africans
Every one of us in this House knows that the office of the National Prosecuting Authority has been abused, over and over again, by the President to shield himself from the law and pursue his enemies.
We have all been witness to this. Instead of debating whether or not it is the case, we should be using this opportunity to plot the way forward to ensure that this won’t happen again.
The position of National Director of Public Prosecutions is meant to be a ten-year term, but over the past decade it has been reduced to a revolving door of deployed cadres.
Since 2008 we’ve had no fewer than six National or Acting National Directors of Public Prosecutions: Vusi Pikoli, Mokotedi Mpshe, Menzi Simelane, Nomgcobo Jiba, Mxolisi Nxasana and Shaun Abrahams.
None of them lasted more than a couple of years. And they all had to vacate the office because of one man: President Jacob Zuma.
This was either because they weren’t prepared to do his bidding, or because it was so blatantly obvious they were being controlled that the courts had to pull the plug on them.
Of these six people, only Vusi Pikoli and Mxolisi Nxasana acted with integrity and independence. And this is what cost them their jobs.
All the other NDPPs helped turn the NPA into what it is today: a shambles of failed court cases, shameful dismissals and political shenanigans.
Instead of fighting crime and corruption, this vital institution of our democracy has now become a key ally of the criminal syndicate dominant in the ANC.
Remember Vusi Pikoli? When he did his job by issuing a warrant of arrest against Jackie Selebi, he got himself suspended. And when he refused to withdraw corruption charges against President Zuma, he got himself fired.
Pikoli was, in the words of former National Assembly Speaker Frene Ginwala, “a person of unimpeachable integrity”. Of course this is why Pikoli had to go.
He was replaced by Mokotedi Mpshe, a man whose sole claim to fame is that he dropped the charge of 783 counts of corruption, fraud, money laundering and racketeering against President Zuma. A decision which was found by the courts to be baseless and irrational.
After Mpshe came Menzi Simelane – another Zuma yes-man so thoroughly discredited that the courts had no choice but to rule his appointment invalid.
Simelane is on record as stating that he believed the NDPP should not be independent, and that the Justice Minister should be able to override decisions to prosecute. Which sounds suspiciously like back in Apartheid, where a politician had the power to override the decisions of attorneys general.
Simelane was followed by Nomgcobo Jiba, an Acting NDPP who was heavily criticized by twelve judges on four benches in three high profile matters.
Blasted by the Supreme Court of Appeal for refusing to hand over the Spy Tapes, she was also found to have lied to the court in the Richard Mdluli case and was charged with perjury and lying under oath in the Johan Booysen matter. She has subsequently been struck off the roll of advocates.
Then came Mxolisi Nxasana, an appointment the President immediately regretted when Nxasana reinstated charges against the President’s friends, Richard Mdluli, Lawrence Mrwebi and Nomgcobo Jiba. Of course this meant that Nxasana, too, had to go.
Which brings us to the latest appointment, Shaun Abrahams. He goes by “Shaun the Sheep”, but don’t let this fool you. This man is a wolf in sheep’s clothing.
Abrahams immediately dropped the charges against Jiba and Mrwebi before setting his sights on the one man standing between the President and access to our Treasury – Finance Minister Pravin Gordhan.
This is a fight that has sent our economy on a downward spiral, and has led to numerous backtracks by Abrahams every time his agenda is exposed for what it is.
His CV already includes dropping the charges against Nomgcobo Jiba, appealing the Spy Tapes ruling, re-charging General Johan Booysen, trying to prosecute Shadrack Sibaya and Robert McBride, and finally charging Finance Minister Pravin Gordhan on a trumped-up fraud charge one day after meeting President Zuma at Luthuli House.
It’s only a matter of time before Abrahams will find it impossible to continue protecting the President. And then he, too, will find himself shoved out the revolving door to make way for someone else.
Six NPA heads in less than a decade, and all because of one man.
This cannot continue. Leaving the appointment of the NDPP entirely in the hands of the President, as it currently stands in our Constitution and the supporting legislation, serves no one but the President himself.
We need to change the way the head of the NPA is appointed – not only to limit the powers of President Zuma, but to limit the powers of all future presidents.
We need to admit that the authors of our Constitution didn’t see this situation coming.
Because if they had envisaged a time when a man like President Jacob Zuma would use his powers of appointment to dodge the law on 783 corruption charges, on Nkandla and on State Capture, they would have been more cautious.
They would have treated the selection of candidates for NDPP the same way as the selection of candidates for Public Protector and Auditor General – through a transparent Parliamentary process, leaving only the formality of the appointment to the President.
This is not only the view of the DA. The same thing has been said by many people, including voices within the ANC.
Back in 2008, then President Kgalema Motlanthe said that he supported calls for the NDPP to be independently appointed by a body such as the Judicial Service Commission.
Constitutional Court Judge Zac Yacoob, in the Menzi Simelane case, expressed a similar opinion when he explained that the Constitution left it to an Act of Parliament to determine whether a candidate is appropriately qualified, and not the President’s discretion.
While the DA has been calling for a Constitutional amendment to limit the President’s powers of appointment since 2013, there is another way to ensure that candidates for the position of NDPP are qualified and independent.
The subordinate legislation – the NPA Act 32 of 1998 – is already clearly intended to curtail the President’s power of appointment, and it can be further amended to explicitly set out the requirements of the NDPP.
I will therefore propose an amendment to bring the NPA Act in line with the appointments for judges and other Constitutional bodies such as the Public Protector and the Auditor General.
This way the President won’t lose his Constitutional powers to appoint the NDPP, but he will be appointing someone who has already been through a transparent vetting process.
Our Constitution is widely considered to be one of, if not the most, progressive Constitutions in the world. This is our supreme law. Nothing – no law or action – can supersede what is written in this text.
Governments may come and go. Some leaders will inspire us, others will let us down. But this document remains a constant.
And the very first thing mentioned in the Bill of Rights is the concept of equality before the law. It reads: “Everyone is equal before the law and has the right to equal protection and benefit of the law.”
This means the same justice, whether you are an ordinary citizen or the President of South Africa.
This is something we can only ever achieve through an NPA that stands completely independent and free from political interference.
That means appointing a National Director of Public Prosecutions who answers to no one but the people of South Africa.
I call on every Member of this House to join the fight for the independence of the NPA by supporting the DA’s amendment to the NPA Act.
Ke a leboga. Ndiyabulela. I thank you.