The appointment of Shamila Batohi as the new head of the National Prosecuting Authority has elicited widespread delight. It comes from all levels of society and is cross-party.
In fact, not since Cyril Ramaphosa’s victory over the forces of darkness at last December’s African National Congress leadership conference has there been such national excitement. Unfortunately, Ramaphosa’s “new dawn” has since proven to be somewhat delayed and murkier than hoped.
And, also unfortunately, the elevated hopes that attend Batohi’s appointment may be similarly dashed. Not necessarily through any fault of her own.
As we know from the seven-year tenure with the previous Public Protector, Thuli Madonsela, a determined and honest person at the head of an institution with powers to investigate and seek redress, can make an enormous difference. That power of character that Madonsela displayed is thrown into stark relief by the pathetic performance of her politically compromised successor, Busisiwe Mkhwebane, who this week — with the backing of the ANC — survived a Democratic Alliance attempt to remove her from office.
The first problem that Batohi faces is the independence of the NPA, or rather the lack thereof. The Public Protector’s office is one of only six state institutions whose independence is constitutionally protected and that are specifically mandate to operate “without fear, favour or prejudice”.
Tragically, the NPA is not one of those six. The appointment of the head of the NPA has always been a political appointment, made by the president in order to achieve partisan objectives — to ignore the criminal transgressions of his cronies and to pursue and punish those of his opponents.
That Ramaphosa, uniquely, has tried to make the appointment of the new NPA head a transparent and non-partisan process, by involving the legal profession in the selection, is to be commended. It does not, however, mean that Batohi will not encounter great political pressures.
It suits the Ramaphosa administration to be able to distance itself from the prosecutions for state capture that Batohi will now undoubtedly pursue with vigour. So, initially, an independent NPA head means the weakening of the faction supporting former President Jacob Zuma, without the Ramaphosa faction having to to bloody their hands.
But it is going to be a different matter when the NPA’s attention eventually lights upon the criminal actions of some of those who bailed from the Zuma ship to muster under the Ramaphosa flag. When that happens, and it surely must, that will be the real test of whether Batohi truly has the independence that Ramaphosa glibly assures us she has.
The issue of NPA independence is, at least theoretically, easily solvable. If the ANC wants a truly independent national prosecutor, it can simply bring a constitutional amendment to achieve that. It’s an amendment, unlike that in process for the Expropriation Without Compensation, that would get virtually unanimous parliamentary backing and support from the electorate.
Admittedly, a constitutional guarantee of independence is worth little if it tolerates a process whereby party pawns continue to be appointed. The Auditor-General’s office and the Human Rights Commission are both Chapter Nine institutions with legally assured independence, but with very different outcomes.
The A-G has operated with exemplary impartiality. The HRC, however, is just the ANC’s puppy dog — trained by now to growl on command but when left to its own devices, not up to much more than shedding hair on the furniture and piddling all over the floor.
More intractable is the other major hurdle facing Batohi, that of the NPA’s competence. She inherits an agency that is dysfunctional, divided and neglected. A small illustration: there are currently more than 200 prosecutorial positions that have been unfilled for years.
Many prosecutors with ability and integrity, who baulked at being at the bidding of ANC politicians, just left. Many of those remaining are the dregs who lack the marketable skills required to survive elsewhere and — as evidenced by the inability of the NPA to prosecute and win cases — are simply professionally inept or else possibly so corrupt that they are willing to act inept when it's politically prudent to do so.
The problems of the NPA are never going to be solved simply by a new director, no matter how impressive her credentials. What is needed is a fundamental change in attitude by ANC towards the institutions that were set up to protect human rights and constitutional democracy, but which have been white-anted by the ruling party.
Such fundamental change seems unlikely in an ANC that appears genuinely to believe that it is the sole embodiment of the will of the people and that the state should simply be an extension of the party. Zuma was not on the fringe of government when he infamously articulated the view that the “ANC is more important than the constitution”.
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