NPA revelations confirm need for overhaul of appointment & removal procedures
Today's revelations in the Sunday Independent that newly appointed National Director of Public Prosecutions (NDPP) Mxolisi Nxasana was not subjected to security clearance shows that the public and Parliament were not alone in knowing nothing about President Zuma's choice of South Africa's new prosecuting head.
The Presidency and Justice Ministry did not know as much as they should have known about him either. Working under pressure from a Presidential promise to the Constitutional Court to appoint against a self-imposed deadline, they neglected to take a step that should have been self-evident when it is precisely security issues that have brought the National Prosecuting Authority (NPA) into disrepute.
As Judge John Murphy's judgement in September (setting aside the withdrawal of charges against police intelligence operative Richard Mdluli) sets out, the withdrawals were the result of representations by Mdluli to Special Director Lawrence Mrwebi and the Director of Public Prosecution South Gauteng.
The "spy tapes" which are the subject of legal action by the DA are likewise security-related. And it was, of course, on the pretence that Adv. Vusi Pikoli paid insufficient attention to national security that he was sacked despite Frene Ginwala's finding that he was indeed fit and proper for the post of NDPP.
Adv. Pikoli has made it clear in his memoir My Second Initiation that he was offered his job back if would undertake not to reinstitute charges against President Zuma. Even if Ginwala found that he should be fired (she did not) ANC MPs on the Ad Hoc Committee (set up under the NPA Act to confirm or reject the Presidential decision to fire or reinstate) would be instructed to keep him on.
This sorry mess just reconfirms that we need entirely new appointment and removal procedures for the National Director of Public Prosecutions. I have made proposals for new procedures in a Private Member's Bill, the Constitution 18th Amendment Bill, which has been referred to the Portfolio Committee on Justice in the National Assembly.
For appointment, we need an open and transparent process under which the best possible candidates may be nominated by the public and interviewed by a committee of the Assembly. The President must appoint the Assembly's final choice. At present, the President acts effectively alone, although he must make his choice rationally as a result of the DA's successful court cases under which the appointment of Adv. Menzi Simelane was set aside.
For removal, we need a constitutional provision which at present is entirely absent. I have said before that security of tenure means absolutely nothing under the present arrangement in the NPA Act: an enquiry, a Presidential decision, ratification or otherwise by an Ad Hoc committee.
Adv. Pikoli's revelation that he was effectively being bribed back into his post against an undertaking that he would abandon his duty to prosecute without fear of favour just proves the case. If Mr Nxasana is the good man we hope he is, he won't last - they will find a way to sack him under the NPA Act. We need to create real security of tenure, and we need to do it in the Constitution.
Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, October 20 2013
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