There is an old saying in flying circles: “You get old pilots and you get bold pilots, but you don’t get old, bold pilots.” The saying does not apply to the prosecution service leadership in general, and certainly not to the National Director of Public Prosecutions (NDPP) in South Africa.
Boldness is a sine qua non in the nation’s current circumstances. It is currently lacking.
The oath of office of the NDPP, currently Shamila Batohi, requires fealty to the rule of law and the Constitution as well as a willingness to act “without fear, favour or prejudice” in one’s official capacity.
It was in that capacity that Batohi delivered the Freedom Under Law lecture at Stellenbosch University on 11 November 2024. What was said on that occasion by Batohi has been reported by Daily Maverick and is deserving of analysis and criticism of a constructive nature.
First a little background. The National Prosecuting Authority (NPA) occupies an ambivalent position in the architecture of the SA Constitution. The “Integrity and Accountability” institutions are housed under the umbrella of chapter 9 of the Constitution, while the NPA finds itself in chapter 8, where it functions as a programme within the Department of Justice despite the constitutional injunction that legislation be enacted that ensures that it exercises its functions “without fear, favour or prejudice”. No such legislation exists.
The NPA falls under the “final responsibility” of the minister of justice in terms of section 179 of the Constitution. The minister must also concur in all prosecution policy. The director-general of justice is its accounting officer. Legislation that allows the minister to intrude upon the functioning of the NPA exists too.
In stark contrast with these provisions and arrangements, the chapter 9 institutions – which include the Auditor General, the Public Protector, the South Africa Human Rights Commission (SAHRA) and the Electoral Commission of South Africa – all enjoy freedom from the executive branch of government and have their institutional independence guaranteed by the provision of section 181 of the Constitution.
That section requires that they serve to “strengthen constitutional democracy in the Republic” and report to Parliament, not any given Cabinet member. In addition, they are not beholden to the Cabinet for their budgets, which are the preserve of Parliament.
Some academics regard the chapter 9 institutions as a fourth branch of the traditional three-legged pot of executive, legislative and judicial separation of powers that constitutional democracy routinely demands. Hence the name “integrity and accountability” branch.
In South Africa’s constellation of seats of power, the NPA finds itself currently in a situation in which it is neither fish (an independent body) nor fowl (a department of state accountable to the relevant minister).
This perplexing state of affairs is probably attributable to the fact that the Constitution was the product of a compromise flowing from the National Accord of the 1990s – a compromise that has left the NPA neither fully independent nor fully a department of state.
The tensions in the compromise arise from the desire of some who negotiated chapter 8 being desirous of a fully professional and fully independent NPA, and others, who were aiming at securing hegemonic control of all levers of power in society.
This latter objective includes all institutions of state – even the judiciary, as the evidence given by President Cyril Ramaphosa to the Zondo Commission of Inquiry revealed.
Treating aspirant judges as a topic for discussion behind closed doors of cadre deployment committees in Luthuli House is hardly respectful of the provisions of section 165 of the Constitution which prescribe a judiciary that is independent, impartial, dignified, accessible and effective. A far cry from the product of secretive committee deliberations on the part of a single political party.
When Batohi was appointed in February 2019, she insisted that the independence of the NPA be assured. While assurances were given, the truth of the situation is that no constitutionally compliant remedial legislation has seen the light of day.
Ministerial “final responsibility over” the NPA continues, as does the role of the DG of justice as accounting officer. Structural, operational and financial independence is not achievable within this current form of architecture.
The desire of the NPA, as led by Batohi and her team, to maintain its position as sole source of prosecution services has prevented it from insisting on proper compliance with:
- Various treaty obligations of SA to establish and maintain independent anti-corruption machinery of state; and
- The binding findings of the Constitutional Court in the Glenister litigation, particularly as regards the need for a body free of executive control to deal with the scourge of serious corruption.
The court has, in clear and unmistakable terms, decreed that a body free and independent of executive control is required to counter the corrupt effectively and efficiently. This requirement does not suit the agenda of Batohi and her team; but it suits our crime-laden political class down to the ground that the Glenister rulings are best ignored, despite their binding nature.
It accordingly does not behove Batohi to play the role of the victim while at the same time choosing to ignore or wish away the treaty obligations and the court findings alluded to above.
If Batohi is doing more than merely paying lip service to the rule of law, then she and her leadership team should be invoking the treaty obligations and raising the court findings in support of the reforms that are so patently necessary, given the poor track record she laments so eloquently.
Instead, she wishes away the findings of the highest court in the land and overlooks the applicable solemn treaty obligations. Worse still, the fact that the court’s finding is not merely a “nice to have” but a binding finding is conveniently wished away by Batohi in her diagnosis of the problems the NPA has with fulfilling its constitutional mandate.
It is not helpful for her to say that worldwide a chapter 9 anti-corruption body is the exception rather than the rule. In SA there is a court finding that freedom from the executive is a must for such a body.
In August 2022, Accountability Now provided the NPA with suggested draft legislation aimed at properly implementing the Glenister rules. These rules are now known as the STIRS criteria for Specialised, Trained, Independent, Resourced (in guaranteed fashion) and Secure (in tenure).
The government is at large to come up with any reasonable formulation of the reform necessary to put in place an effective and efficient anti-corruption entity, provided it complies with these criteria.
“The reasonable decision of a reasonable decision-maker in the circumstances” is all that the court, very properly so – given the doctrine of the separation of powers – requires.
The solution the government put in place as its version of these requirements is known as the Investigating Directorate Against Corruption or Idac, a body within the NPA, born in May 2024, which is legally indistinguishable from the Scorpions of old, a unit summarily disbanded by the incoming Zuma administration in 2009.
While the Scorpions lacked secure tenure and proper independence, they did demonstrate that trained specialists are available in SA to counter corruption if the necessary resources are made available.
In essence, the Scorpions were dissolved because they did their job too well and took an interest in investigating too many powerful politicians and their associates. Jacob Zuma and Jackie Selebi, the former chief of police, spring readily to mind. So do the Travelgate fraudsters.
The NPA did no more than record, in 2022, that the suggestions of Accountability Now were “noted”.
The DA, on the other hand, did more than note the said suggestions. It has produced draft legislation aimed at establishing and enabling a Chapter Nine Anti-Corruption Commission to counter serious corruption and organised crime. The DA drafts are based on the suggestions made back in 2022, and they tick all the boxes put in place in the Glenister litigation.
It ought to be clear to those who respect the rule of law and the Constitution and who work in the leadership of the NPA that Idac does not pass constitutional muster and does not constitute compliance with the relevant “independence” treaty obligations. It is liable to be shut down by the courts at the instance of any public interest litigant bold enough to challenge its constitutionality.
Laws that are inconsistent with the Constitution are invalid under the provisions of section 2 of the Constitution.
In these circumstances it behoves the NPA to come up with its own formulation of what must be done to comply with the Glenister rulings instead of the wailing and gnashing of teeth that have been its stock response to the failure of the system due to the lack of political will to put in place structures, operations and financial arrangements that are compliant with the law.
It is not enough to pay lip service to the rule of law while allowing corruption with impunity to continue due to the shortcomings mentioned above.
The NPA is an organ of state. It has powers and rights under section 41(3) of the Constitution. It could ask the Public Protector to rule on whether the current regime accords with the Glenister rules and the international obligations of the country.
It could even approach the SAHRC on the same basis, because the dysfunction in the criminal justice system impacts negatively on the ability of the state to respect, protect, promote and fulfil the human rights guaranteed to all in chapter 2 of the Constitution.
Protests and strike action by those sympathetic to the lot of the NPA are possible. The NPA could approach the courts “after exhausting all other remedies” for appropriate relief that would see the reforms needed to have effective and efficient anti-corruption machinery of state in SA.
It does not behove the NPA to behave as though it is a rabbit in the headlights of an oncoming blue light convoy. Comporting itself without fear of the powerful, without favouring the friendly and without prejudicing the public is what the NPA should be doing to rectify the issues around serious corruption that are creating an existential crisis for SA.
This most worrisome topic will be discussed at a webinar organised by Public Affairs Research Institute for 15 November 2024. Accountability Now has prepared a brief memorandum for the webinar.
In the absence of any sensible and constitutionally compliant alternatives, the DA bills should be debated, refined and made law as soon as is practicable. Idac is a non-starter because it is part of the NPA and therefore not independent.
Making the NPA independent won’t do because it is infested with saboteurs. They undermine its best efforts, as most recently seen in the aborted prosecution of former Cabinet minister Zizi Kodwa. Remarkably, the decision to withdraw all charges against him is being reviewed by Batohi.
Support for the DA bills from all quarters ought to be a no-brainer. The fact that it is not is chilling to all who value constitutional democracy under the rule of law.
No political party which aspires to survive in the current electoral climate that pertains in SA can afford to be seen to be soft on countering corruption. The electorate has had enough of the corrupt. And of their fellow travellers and enablers. DM