President Cyril Ramaphosa’s announcement of the panel that will recommend the next national director of public prosecutions (NDPP) was profoundly worrying.
The composition of the NDPP selection panel is not a procedural requirement under the National Prosecuting Authority (NPA) Act. But it should not be a tick-box exercise, either. It is the foundation of the process that will decide who leads one of SA’s most important institutions: the NPA. Get this process wrong, and we risk another decade of impunity for the corrupt, drift and “infiltration” — and worse — in the NPA.
SA faces crises on many fronts, none of which can be resolved unless the economy grows and the state becomes much more effective. The inability of law enforcement agencies to pursue powerful people who use their positions for self-enrichment and patronage makes this impossible. The government cannot protect itself from the looting of scarce resources needed to boost growth and address poverty without an effective NPA.
The weakening of the NPA was at the centre of state capture, which began with the closure of the Scorpions and the defenestration of Bulelani Ngcuka. Hopes were high when the current NDPP, Shamila Batohi, was appointed in December 2018, but seven years later there is widespread dissatisfaction with the NPA’s performance.
NPA a failure
The NPA has a dismal record regarding securing convictions in corruption cases. It has failed to conclude a prosecution of a single high-profile person implicated in forensic reports and commissions of inquiry, including those relating to the Passenger Rail Authority of SA (2017), Transnet and Eskom (2018) and the Zondo commission (2022). In several instances these reports provided the NPA with a clear picture of the alleged crimes that ought to have been quickly translated into indictments. Progress, however, has been desperately slow.
The NPA’s disappointing performance has failed to deter the spread of corruption and has led to a pervasive sense of despair that the state cannot or will not enforce the law in politically sensitive cases.
Nor has the NPA covered itself in glory in the prosecution of other kinds of serious crime. There is a widespread sense that organised crime has settled into the SA landscape.
In this context the appointment of the next NDPP is a critical decision.
Independent panel needed
Earlier this year, the Centre for Development and Enterprise (CDE) proposed a transparent process to appoint the next NDPP. We called for an independent selection panel comprising people whose professional stature and integrity would inspire nationwide (not partisan) public confidence — a retired judge, senior legal experts, a respected civil society representative, a business leader, and a former senior public servant. This would have been an appropriate mix of people who understand the demands of leadership, have no political masters to please and are capable of identifying the best possible candidate.
We proposed that the panel’s selection criteria be made public. However, we suggested that its interviews and deliberations take place in private to avoid turning the process into a political spectacle, which might deter good candidates. The president would commit to publishing his rationale for the ultimate appointment, especially if he chose a candidate different from the one recommended by the panel. This would not have limited his constitutional authority but would have helped encourage qualified candidates to make themselves available and ensured that the final decision would be maximally credible.
This is not the process we have been given.
The president’s panel consists of the minister of justice and constitutional development (chair of the panel), the chair of the SA Human Rights Commission, the chair of the Commission for Gender Equality, the auditor-general, the chair of the Public Service Commission, one representative from the Black Lawyers Association and one representative from the National Association of Democratic Lawyers.
It looks very different from what we and some other voices in civil society urged him to establish. Despite the merits of particular individuals, the panel lacks the necessary independence and breadth of professional experience: no representative of the judiciary, no leader from civil society nor the organised legal profession.
Managerial experience vital
The NDPP’s job is to lead the fight against corruption and crime, to ensure the prosecution of the powerful without fear or favour, and to uphold the rule of law. This is a position that demands first-rate legal competence, an unshakeable sense of justice, absolute integrity, the thickest possible skin and the courage to withstand immense political pressure. The new NDPP will need to draw on deep reserves of managerial experience to drive institutional change and to rid the organisation of the incompetent and the captured.
The new NDPP will need to fight to ensure the essential support from the ministry of justice and the president to truly reform the organisation, unfettered access to the Zondo commission archive (and in time the Madlanga commission’s), and to receive funds necessary for the NPA to do its job effectively.
The president had an opportunity to reassure the country of his commitment to fighting corruption. He could have demonstrated that he understood what rebuilding capable institutions really requires. Instead, we have a panel that looks depressingly familiar and unpromising.
SA business made strong representations to the president about this appointment. They underlined that without credible prosecutions and an effective NPA, investment, growth and job creation will continue to falter. They also supported the idea of an independent, high-calibre selection panel that would command nationwide respect.
Those proposals, like ours, have been ignored.
Ramaphosa’s credibility in question
We all hope that, despite this flawed panel, a good appointment will be made. It is still possible that the right person could emerge. But the odds of success have been reduced by the way this panel has been constituted, further undermining the president’s credibility on the issue of the rule of law.
The NPA’s failures over the past decade have devastated public trust. The next NDPP must be someone who can change that. This is not an ordinary job. It is one of the most demanding leadership positions in the country. The person chosen must be strong enough to face down political interference, honest enough to act without favour, and pragmatic enough to rebuild an institution that has been hollowed out and demoralised. The demands of this last task should not be underestimated: the NPA’s capabilities are grossly overmatched by well-financed accused persons. The new NDPP faces the huge challenge of narrowing this gap.
A flawed appointment now would set SA back for years. The wrong choice will mean continued impunity for the corrupt, further erosion of state capacity and deeper cynicism among citizens who already feel that the system is rigged. Instead of building public confidence, a flawed appointee will encourage actual and potential criminals.
All is not yet lost. The president could remedy the situation. Strengthen the panel in the ways we have proposed. Announce the criteria for a new NDDP and the critical job the country needs them to perform. A worthy candidate will be hard to find and will need a unique set of attributes. The president should remind the panel to apply in this case what he has said in general: “Merit-based appointments are non-negotiable”, and maximise the chances that the best possible person will be appointed.
• Bernstein is head of the CDE.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.