Batohi vies with Ramaphosa in the damp squib stakes
William Saunderson-Meyer |
07 August 2020
William Saunderson-Meyer says says we should not give up on the NDPP yet
The only rival to President Cyril Ramaphosa in the national damp squib stakes is National Prosecuting Authority (NPA) chief Shamila Batohi. Public adulation has been souring to public scorn.
A year-and-a-half in office and there has not yet been a single prosecution of the scores involved in looting a trillion rand from the fiscus during the lost decade of Jacob Zuma’s presidency. Social media is now full of sniping and conspiracy theories, while the media has moved from unqualified support to waspish calls for her “to walk her talk”, as the cliche goes.
As with Ramaphosa, the man who appointed her as National Director of Public Prosecutions (NDPP) and whose period in office she almost exactly mirrors, Batohi has disappointed. Like Ramaphosa, the high expectations that met her appointment had less to do with proven professional skills than enormous relief at the promise of change from the incompetence and venality of their predecessors.
As with CR, the scepticism is growing, the hope fading. But unlike with CR, the disillusionment is not entirely justified. And unlike CR, we should perhaps protect that flickering flame of hope just a little bit longer, as we try to puff it into a blaze.
To start with, unlike CR, Batohi is not tainted by a past and continuing association with the forces of criminal darkness that they confront. Everyone to whom one speaks about Batohi remarks upon her integrity, her ethics, and her commitment. CR, in contrast, sits down weekly, however uneasily, with some very shady characters.
The burden of expectations upon Batohi is enormous, especially when one considers the paucity of the resources she can deploy. And many of her most pressing problems are beyond her remit to address.
The African National Congress has reduced the SA Police Service (SAPS) to a husk over the past 26 years. Behind the SAPS edifice, the kind of sophisticated investigative skills required for the intricate and extensive financial investigations of the kind involved in state looting, no longer exist.
Part of the SAPS collapse is the inadvertent but not unsurprising by-product of over-hasty transformation. Part of it is entirely deliberate — corruption is now so pervasive within the ANC government that a competent SAPS is the last thing that the ruling elite would want to see.
Within the NPA, the situation is worse. One NPA insider tells me, “Very few people outside of the NPA even begin to comprehend the rotten, damaged mess the organisation has been reduced to by political interference.”
So it’s important when assessing Batohi, to remember the NPA’s sordid history. While the office of the National Director is a 10-year term, not one appointee has survived a full term. If one includes acting appointments, Batohi is the ninth head since 1998, which means that there exists no established ethos or institutional continuity.
And what rogues gallery of scoundrels most of her predecessors were. The only unambiguously good guy was Vusi Pikoli, who was suspended by President Thabo Mbeki in order to protect the national police commissioner from criminal prosecution and was then fired by President Kgalema Motlanthe after Mbeki’s ousting.
Pikoli’s successor, Menzi Simelane, was a Zuma appointee. After a long tussle over ethical issues with, among others, the General Council of the Bar, Simelane slunk off when the Constitutional Court declared his appointment invalid.
Then there was the toxic Nomgcobo Jiba, who was acting head for only a year but clung onto the Deputy NDPP position until 2016. During her tenure, she faced criminal charges (withdrawn) for fraud and perjury, was found unfit for public office, and was eventually struck off the roll.
What about the apparently well-intentioned but hopeless Mxolisi Nxasana, for whom Jiba had acted as seat-warmer? With two convictions for assault, it is not surprising that he tried to conceal when applying for the necessary security clearance, the fact that he had also been tried for murder albeit acquitted on grounds of self-defence. Bowing eventually to pressure, Zuma struck a R17m deal — later declared invalid by the courts — with Nxasana for him to go away.
The same court set aside the appointment of Shaun Abrahams, who was memorialised in public derision as Shaun the Sheep for his pitiful contortions in trying to help Zuma avoid criminal charges.
It was this chain of events that opened the door for Ramaphosa to appoint Batohi, the first NDPP head not to be openly affiliated with the ANC. It was also the first such appointment that followed a transparent selection process, with an advisory panel interviewing 11 candidates.
She inherits an NPA that was barely functional. Staff morale is low and she is surrounded on every side by rotten apples from the Zuma years and many of the best people have long since decamped to greener pastures.
Even if Batohi had unlimited financial resources — budgetary constraints are a constant refrain in her public remarks — the necessary skills are not easily acquired. It takes around 10 years of on-the-job training under an experienced mentor to become a really competent prosecutor, longer for the specialised field of financial crime.
As one former NPA staffer said to me, “Every day, every move that Batohi makes is being watched by people who want to undermine her and thwart her. She will have very few allies and no one that she can trust completely.
“To add to the pressure, the national appetite for revenge, for righting the wrongs of the Zuma era, is huge. They want rabbits out of hats but that’s just not possible.”
What about just one rabbit? One teeny bunny-wunny to slake our bloodlust?
No matter how unimpeachable her principles, her strategy comes in for criticism. Instead of spreading the risk with several large investigations taking place simultaneously — a strategy that would be daunting even if the NPA had the skilled staff and budget necessary — some argue for a sniper approach.
“Prosecutors, perfectly understandably, have an enormous fear of failure. But these are circumstances in which one cannot play it safe. Rather take the risk and go for a big win.
“Concentrate all efforts onto one of the easier targets, such as the corruption around the Estina dairy project. Just a single win will make a huge difference — it buys time for other investigations, it’s a salutary lesson to those who think that they can loot with impunity, and when the first domino falls, the NPA will be overwhelmed by a deluge of smaller crooks wanting to buy immunity by ratting out the bigger ones.”
Such a strategy would have another payoff, points out another lawyer. It would renew hope for the future in a country which is dangerously bereft of it.
The sticking point, however, is another unfortunate characteristic that Batohi may share with the president. To survive in the top job in the wildlands of South African politics — be it the presidency or the NDPP — demands fire in the belly and an appetite for conflict. Neither Ramaphosa nor Batohi strikes me as having it.
There's not a lot of time to find out. If Ramaphosa is ousted before the end of his term, as were both his predecessors, it is likely that Batohi's position would soon be made untenable. The window of legal accountability for the criminality of the Zuma years is small and shrinking.