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Amid nationwide shock, South Africa’s National Prosecuting Authority (NPA) continued courting controversy with the ill-timed and ill-informed decision to charge 270 Lonmin mine workers with murder after 34 of their colleagues were killed at the hands of the police. Initially, the miners faced charges of public violence, but these were later changed to murder and attempted murder. The lawyers for the miners showed that they thought these charges were political in nature by writing an open letter to President Jacob Zuma, asking him to intervene. In their letter they also stated, ‘It is our instruction to inform you that it would be the understatement of the century to call this turn of events bizarre in the extreme … It is inconceivable [that] the South African state, of which you are the head ... can genuinely and honestly believe or even suspect that our clients murdered their own colleagues and in some cases, their own relatives.’ This letter reflected the sentiments of many, including senior officials of the African National Congress (ANC). A few days after an unprecedented outcry against the NPA, and in a move that raises more questions than it answers, controversial acting National Director of Public Prosecutions (NDPP) Advocate Nomgcobo Jiba announced that the charges against the miners would ‘provisionally’ be withdrawn. The initial decision to charge the miners amid deep tension in the Marikana community in the North West and the volte face in dropping the charges lends further credence to growing perceptions of political meddling in the affairs of the NPA. There have been various incidents that have suggested a lack of integrity and independence within the NPA, most notably the withdrawal of serious criminal charges against those connected to or openly supporting Zuma. It would seem that the root cause of the NPA’s problems is the appointment by the president of unsuitable people, who appear to be willing to sacrifice principle for politics, to senior positions.
In late 2011 the Supreme Court of Appeal (SCA) ruled that Zuma’s 2009 appointment of Advocate Menzi Simelane as NDPP was ‘inconsistent with the Constitution and invalid’. In the ruling SCA Judge Mohammed Navsa noted that, ‘The minister and the president both made material errors of fact and law in the process leading up to the appointment of Mr Simelane.’ He further stated that, ‘It is clear that the president did not undertake a proper inquiry ... On the available evidence, the president could not have reached a conclusion favourable to Mr Simelane, as there were too many questions concerning his integrity and experience.’ It is embarrassing for the President to be publicly questioned about his selection of an individual of questionable integrity to head a critically important institution such as the NPA. Individuals of questionable integrity are unlikely to engender public trust and will be seen to be serving the interests of powerful if, for instance, they withdraw criminal cases against high-level government officials and politicians.
Indeed, there were accusations of political meddling when former NDPP Bulelani Ngcuka made the controversial statement in 2003 that even though there was a prima facie case of corruption for Zuma to answer to, the NPA was not going to prosecute as it felt the case was not winnable. This despite the fact that Shabir Shaik was convicted and sentenced to 15 years for corruption involving Zuma. Again in April 2009, when then acting director of the NPA Mokotedi Mpshe dropped criminal charges of corruption, fraud, money laundering and racketeering against Zuma, many people suspected that the reasons were primarily political in nature. The NPA’s credibility took a huge knock both when Mokotedi said the reason for his decision was not based on the merits of the case, meaning the evidence against Zuma, but because of untested and illegally obtained crime intelligence tapes, and when it emerged that he had plagiarised an overturned Hong Kong court judgement to explain his argument.
Another case that raises concern is that of former South African Police Service (SAPS) crime intelligence boss General Richard Mdluli. Following a painstaking investigation by the Hawks that required seven people to be placed in the witness protection programme, the NPA decided to charge Mdluli with a number of very serious crimes, including murder, attempted murder, assault, defeating the ends of justice and corruption. The Mail and Guardian (3–9 February 2012) reported that following closed-door representations from Mdluli’s lawyers, the NPA had a change of heart and withdrew all charges. Mdluli claimed that the charges against him were politically motivated and amounted to the abuse of the criminal justice system by unnamed powerful and politically connected individuals. Interestingly, in his bail hearing, Mdluli admitted to using police resources to spy on senior ruling party politicians who he stated were seeking to remove Zuma as president of the ANC. He claimed to have approached Zuma in October 2011 with a report on this group and hence, he argued, the conspiracy to remove him from his post. However, the NPA did not think that the best place to test this unlikely defence would be in court. This decision became even more puzzling when a later investigation ordered by the Minister of Police revealed that there was no evidence of a conspiracy against Mdluli. Interestingly, Mdluli had supported Jiba after she was suspended from the NPA for allegedly abusing her power to derail the prosecution of former SAPS National Commissioner Jackie Selebi. Earlier this year the president expunged the criminal record of Jiba’s husband, Booker Nhantsi, who had been found guilty of embezzlement. Recently, following a closed-door deal, the NPA dropped serious corruption charges against two senior KwaZulu-Natal politicians who are known supporters of a second Zuma presidency
Another instance where political considerations seemed to trump the rule of law was the disbanding of the Directorate of Special Operations (DSO) or Scorpions, a highly effective corruption-busting unit located in the NPA. The Scorpions were replaced by the Hawks and relocated within the SAPS, a move later found to be unconstitutional.
Increasingly, questions are being asked whether the NPA is adhering to its mission, which states that, ‘Guided by the Constitution, we in the National Prosecuting Authority ensure justice for the victims of crime by prosecuting without fear, favour and prejudice and by working with our partners and the public to solve and prevent crime.’ For the criminal justice system to be seen as transparent and fair, it is critical that the public trust the NPA to treat all people fairly. Internationally, confidence in the criminal justice system is critical to the country’s desirability as an investment destination.
The recommendations by the National Planning Commission that an independent body undertakes the task of appointing the National Police Commissioner are highly appropriate for the position of the NDPP. It is critical now more than ever that an independent review is undertaken of the senior appointments to the NPA in recent years and the decisions they have taken in controversial cases. A system then needs to be put in place that ensures all future appointments are made solely on merit, competence, experience and demonstration of integrity and independence.
Written by Hamadziripi Tamukamoyo, Researcher, Crime and Justice Programme, ISS Pretoria