The National Prosecuting Authority has increasingly come under fire this year, primarily because of a slew of high-profile failures. There have been the usual accusations levelled against President Jacob Zuma, and the usual people have shouted the usual things back. We all know the main root of the problem is political. We all know that the president has not appointed a permanent head to the NPA. We all know that he appointed someone who was not ‘fit and proper’ back in 2009. It's our time now to start living with an uncomfortable truth. It is not in Number One's personal interest to appoint a permanent head of the NPA. Or to the Special Investigating Unit, for that matter. By STEPHEN GROOTES.
Under the Constitution, the appointment of an NPA head is simply left up to the president. There are just two qualifications: the person has to be "fit and proper" and must be "qualified to appear in all the courts in South Africa". So the chosen one has to be an ok geezer, and an advocate. That's it. Sometimes it seems, it's harder to be one than the other.
Up until now, that's been seen as a huge advantage to the person occupying the Number One spot in government. It means you can appoint the person who will decide whether certain people face criminal charges or not. In the criminal sphere, you get to control, via a sort of remote control, which cases judges can then make judgments on. Thus, it is easier to control the judiciary through the NPA, than going through the hassle of taking on Judge Johann Kriegler and his mates by changing all the judges.
But now we need to look at where Number One finds himself at this present moment. The NPA has not had a permanent head since the Constitutional Court's finding on Simelane as an appalling choice back in October last year. But in reality, he was on ice for several months before that. And we know that Advocate Nomgcobo Jiba has been running the show - into the ground, you might say.
Jiba, as you probably know by now, has issues of her own. There's the fact she herself probably wouldn't fit the definition of "fit and proper" because of her role in trying to arrest Advocate Gerrie Nel while he was prosecuting Interpol's model policeman Jackie Selebi. Never mind her attempt to charge the survivors of the Marikana massacre with murder, when 34 of their fellow marchers were lying dead on the ground.
But the real reason we know she's Number One on a certain speed-dial list, is that her husband's fraud conviction was expunged. And there's only one person who can do that. Yip, the same guy who appoints NPA heads.
It's indicative of a certain exchange rate, isn't it? One expungement, a bit of bad publicity. Control of the NPA. (Priceless.)
If you are the country's Number One strategist, you would examine your options very carefully. In any game of political chess, it's important to keep your options open as much as possible, to ensure you have as much political moving space for yourself as possible. Once you appoint someone to lead the NPA permanently, they have a once-off ten-year term. You can never use them again for something else. And as your former mate Thabo Mbeki could tell you, it's damn hard to get them out if you stop liking them, or should they develop a nasty habit of independence. You have to make up a reason, suspend them, hold a public hearing where the media draw rude cartoons of you and it's a general pain in the arse.
And if you already have some form of control over the NPA already, no strategist in the world would advise you to make the appointment permanent. If you have someone in an acting position, you can just chuck them out when you feel like it. Of course, you also make sure they understand it well.
So in this case, to not act, is in fact a positive action; it's making a decision to keep the NPA position open, for later use. And as Number One has already pointed out, the Constitution doesn't at this stage compel you to make a decision in a certain time period, there's no deadline that you have to meet.
Right then, we have to live without an NPA head. What is that going to mean for all of us?
For a start, the NPA's going to get a lot worse before it gets better. There's a sort of dynamic to these things, once some of the good people in an institution realise it's not going to improve. First they try to stay on for a while to limit the damage. Then, through pressures of family, or to protect their self-respect, or because they just realise they will be tarnished by staying on, they have to leave. Once some of the senior good people go, the good people below them follow quite quickly. If Glynnis Breytenbach goes tomorrow, more people would follow by Friday.
The NPA seems to be at this point. Things are about to burst really badly.
And that means that more mistakes are going to be made by prosecutors, leading to judges having to throw cases out. And when the criminal justice system is seen to be faltering, the criminals will go on about their stuff with greater alacrity.
Then the ordinary people will start to take the law into their own hands. They will hold kangaroo courts, and mob justice will take over. Why call the police if you know they're corrupt, and the NPA can't get a murder conviction anyway, even if your death is shown on the 7 o'clock news? Law and order, safety and security, it will all start to break down.
It's pretty much the worst parts of the Bible.
However, being a democracy, leaders can't just get away with things indefinitely. As long as there are elections, and general trust in the political system, the worm will turn. There will be a consequence for Zuma's decision to giggle as the NPA burns.
Up until now, while crime and justice have been big political issues, they've been on the side of Zuma. He had Mbeki's glittering example to point to, as evidence of how life under him has improved. Now, it could be possible for this to go the other way.
You can imagine Cyril Ramaphosa on one his deployments to Sandton during next year's election, finding himself again and again having to explain to frustrated urban middle-class voters, why they should still back the country's Number One Giggler, when it's clear the justice system is falling apart.
Sure, voters in rural KZN will have other concerns, but Ficksburg is likely to want to know about the NPA. And because it's brought so much bad publicity, they won't be the only ones. This sort of thing does matter to urban voters, where the real battle is going to be. It's not going to lose the ANC the election, but it could change the playing field the election is played on, forever.
But six years from now, that dynamic could be intensified so much that the voters finally understand in great numbers that the criminal justice system is part of government, and if it fails, it's a failing of government.
Zuma's tactics may indeed be tactically smart and politically rather expedient, but they can also sow the seeds of the ultimate punishment in the longer term. Giggling and doing nothing does not a good future make.
Written by:Stephen Grootes
Picture credit: Daily Maverick
- This article was published on Daily Maverick.