Reform of the National Prosecuting Authority is foolish hope

Opinion and analyses suggest “a promise of a cleaner South Africa” after the Constitutional Court found former national director of public prosecutions Shaun Abrahams’ appointment was unlawful.

Hope springs eternal and I’d like to believe, as these articles do, the “criminal justice system is on the mend” and the “court fixes flaws in the NPA”. But we must not be naive about the country’s deeply flawed institutions, politics and the way things are done here.

Let’s be realistic, for every step forward, there’s one or two steps back. There have been so many promises about so many things but every time, or almost every time, it’s turned out to be foolish hope.

Analyses of the judgement concentrate to one extent or another on the National Prosecuting Authority (NPA) and criminal justice vis-à-vis corruption in the governing party and politics. That’s important, but more so is the NPA’s and law enforcement agencies’ dysfunction, and through that, its contribution to the country’s culture of lawlessness.

A case in point is Cape Town’s Director of Public Prosecutions (DPP) declining to prosecute fallist Masixole Mlandu on "humanitarian grounds” (sic) despite serious, politically inspired charges of public violence, malicious damage to property, contempt of court and intimidation. Over half billion rand damage to property alone – terrorism by any measure – and not one fallist rioter prosecuted, and nobody was prosecuted for Life Esidimeni (but middle-aged racists are sent down for three years).

I have a personal interest in the matter as a family member affected by wrongdoing. From September 2017 to June when we cut our losses, we experienced the DPP’s (and police’s) bumbling ineptitude (not the first time ever too), cowardliness, poor case management, bias and them wilting under interference from the highest provincial office that must have affected their prosecutorial decision-making, which of course they denied. The accused were state employees and prosecution would have been politically unthinkable and exposed state culpability, which must be avoided at all costs.

I asked Abrahams to investigate the DPP’s conduct which he didn’t do despite them replying “[we] confirm it will be addressed in the office of the National Director of Public Prosecutions (NDPP)”. It’s unlikely his successor acting NDPP Silas Ramaite shall do so either.  I’ve washed my hands of the NPA (a plague on all its houses).

Like Juvenal asked, “Who will guard the guardians?”  Who will protect citizens from a rogue prosecuting authority?  There’s no state organisation that can do it. Not the public protector. Not the ANC government and their members who benefitted from the NPA’s (and police’s) disarray.

Only the courts which few citizens like you or I have recourse to, and only then after lengthy and expensive litigation. Even then the Constitutional Court didn’t “fix” the flaws in the NPA as the title to Cathleen Powell’s article states, but merely pointed out its defects. It’s up to the president and ANC government, with the pressure of political parties and civil society, to do that. But history has taught me to be cynical of the ANC’s promises and capabilities.

I doubt this opportunity presages a break with the NPA’s compromised history about which The New York Times recently wrote, “In recent years, the National Prosecuting Authority, which has been compromised by intense meddling by ANC politicians, has increasingly been used for political ends”.

It’s unrealistic to expect 10 years of Zuma misrule and the five preceding years under Mbeki when the country and its leaders perhaps irrevocably lost their way can be undone with one judgement and a state capture inquiry.  The latter will drag on and ultimately be unresolved with nobody being at fault like the arms inquiry.

Unless he’s leaving it to the last innings, President Cyril Ramaphosa is not the country’s saviour – the hero at the bridge.  Already, after only a few months in the job, he’s losing citizens’ and businesses’ confidence. And the country’s economic prospects are worsening, casting its vote on the early “Ramaphoria” promise.  As ANC leaders always do, he’s staking the interests of the party and his 2019 re-election prospects ahead of the country’s wellbeing, for example, by expropriating the far-left’s Zimbabwe-like expropriation without compensation ideology.

The left’s and media’s obsequious Ramaphoria praise-singing is as premature and naive as believing the court’s judgement automatically resolves the NPA’s problems. On this point, deputy directors Nomgcobo Jiba’s and Lawrence Mrwebi’s status is still unresolved.

I concur with Powell who wrote:

“The court decision presents a clean page for the National Prosecuting Authority. It allows for the appointment of a new national director of public prosecutions who might clean up the institution and return it to effective functioning. This, however, is far from a certainty.

“The judgment protects the independence of the new head of prosecutions and his deputies by removing some potential for fear, favour or prejudice. But it provides no guarantees the new prosecutions boss and the National Prosecuting Authority will be impartial and competent and conduct themselves with integrity.”

I’m wary of giving the government advice because they never listen. But while appointing a new NDPP free from political interference and bias is a start, structural reform at the NPA must not be limited to the NDPP only but the directors of public prosecutions too. Victims of crime and their families deal with them and regional prosecutors, not NDPP, where day-to-day decisions are made whether or not to prosecute crimes. 

While the rot and stasis at its head affects the whole NPA, removing time serving careerists, political opportunists and incompetents in the organisation is vital to rebuilding its integrity and function.

Unfortunately, except the courts, South Africa’s state institutions are fragile and vulnerable to constant political meddling and ineptitude and their integrity remains suspect. So it’s hard for me to believe there will be significant change at the NPA anytime soon, if ever.

Footnote. The two paragraphs describing my opinion of our experience of the DPP (also see my blog posts) and NPA is accurate and is supported by communications with them. At the time I sent them the link of  the blog post. There was no response. I submitted this article to a news and opinion website which declined to publish. 30/08/2018.