Appointment of a NDPP – culture of accountability is crucial to developing a decent caring society

The appointment to be made by the President of a National Director of Public Prosecutions to replace Shaun Abrahams has generated intense media and political scrutiny. And rightly so. The Constitutional Court has held that the office must be “non-political and non-partisan and is closely related to the function of the judiciary broadly to achieve justice and is located at the core of delivering criminal justice”.

In all societies the importance of the identity of the prosecuting authorities, and particularly its leaders, cannot be over emphasised. A culture of accountability is crucial to developing a decent caring society. And the prosecuting authority is key to advancing accountability and a move away from impunity for transgressions of the law.

Bearing these ideas in mind many in civil society and political parties have complained that the legal mechanisms governing the President’s appointment are insufficient. So, there have been suggestions that the Constitution and the relevant legislation needs to be amended. The proposed amendments would make the NDPP appointment process similar to that of the appointment of the Public Protector (involving Parliament) or judges (involving the Judicial Service Commission).

In our view, those amendments would certainly be welcome. A more transparent, formal appointment process that allows for the consideration of multiple candidates, by independent institutions can only be good for the NPA.

But, legally, no amendments to the Constitution or legislation are necessary to achieve a transparent, and competitive process. Not because it can be guaranteed that the current President or any future President will appoint a suitable NDPP, but because the Constitution and the law already constrain the appointment process.

The process in appointing the NDPP must be rational. Thus how the President goes about choosing the NDPP must satisfy the Constitution.

When the Constitutional Court held that former President Jacob Zuma had unconstitutionally and unlawfully appointed Adv Menzi Simelane it did not do so because Simelane was not as a fact a fit and proper person. What the Court stated was that the fit and proper requirement was an objective inquiry, and that the process used to determine whether that objective fact was present had to be rational. As the Court explained: “The means for achieving the purpose for which the power was conferred must include everything that is done to achieve the purpose. Not only the decision employed to achieve the purpose, but also everything done in the process of taking that decision, constitute means towards the attainment of the purpose for which the power was conferred.”

The appointment of Simelane was irrational because President Zuma had not followed a rational process in deciding to appoint him. The process was irrational because he had not considered serious evidence suggesting that Simelane was dishonest.

So, when the President embarks on his appointment process for the new NDPP he must choose proper means to do so. If the “means employed” are connected to the purpose of his power, then the President will have acted lawfully. Is the President bound to employ any particular process? The answer is no. The Constitution does not mandate a competitive interview and short list process, or any other process.

But if the President chooses a process that makes it impossible for him to properly assess whether the chosen candidate is fit and proper then he will have acted unconstitutionally. Put simply, the President is not required to ensure that his nominee is the best, only that he is good enough; that he is fit and proper. To do that, the President must fully consider the person’s background.

In our view, it is not possible for the President to be sure that the person he has selected is fit and proper unless he publicly announces his proposed choice and calls for public comment. However thorough the President’s own process, it is unlikely to unearth all relevant information – the views of all the people who know the nominee both personally and professionally, and can shed light on his character, his integrity and his ability.

The recent hearings concerning the nomination of Brett Kavanaugh to the United States Supreme Court are a good reminder of how the events of decades ago can render a person unfit to serve in high legal office. Kavanaugh had previously undergone six FBI investigations, that had not uncovered any whiff of sexual misconduct. Yet when his name was widely known as President Trump’s chosen nominee for the Supreme Court, several women came forward to accuse him of sexual misconduct. The publication of the nominee, prior to appointment, is vital to ensure that President Ramaphosa has all the necessary information to make the ultimate decision.

Of course, even that is an imperfect process. It is not competitive, and it does not involve an independent body, such as Parliament or the JSC. Ideally, our legislation should be amended so that the appointment of someone to the office of NDPP cannot be done by the President alone, even if he follows a process that meets the bare minimum of rationality.

The National Prosecuting Authority Act should be amended to require a similar process to that required for the appointment of people to Chapter Nine institutions, or to the judiciary. Either Parliament, or the JSC should be required to hold an open, competitive process where all possible nominees can be carefully scrutinised, and the best one chosen. While the ultimate choice may still rest with the President (as it does with Constitutional Court judges where he selects from a list of four names sent by the JSC), the process should not be run by him alone. DM

Anton Katz is a practising advocate (SC) at the Bar in Cape Town. He is a member of the United Nations Working Human Rights Councils Group on mercenaries

Michael Bishop is an advocate at the Legal Resources Centre