The recent judgment by South Africa’s Constitutional Court that ended the reign of the country’s national prosecutions boss marked the end of former president Jacob Zuma’s hold on the country’s criminal justice system.
The court found that Zuma had appointed Shaun Abrahams unlawfully to the powerful position, and ordered him removed. President Cyril Ramaphosa has since replaced him with Silas Ramaite in an acting position.
Abrahams was the last remaining Zuma acolyte in the country’s criminal justice system. Finally, Zuma has lost the iron grip he once held on crucial state institutions.
Abrahams’ departure follows sweeping changes to other key positions in the government’s criminal justice and security cluster. The highly compromised Arthur Fraser has been moved from the State Security Agency while the priority crimes investigating unit, the Hawks, has a new head.
There are still two relatively new Zuma appointments in position: the national police commissioner Khehla Sitole, and the Inspector General of Intelligence Isaac Dintwe. Both of them have received Parliament’s endorsement at a time when it was already increasingly critical of Zuma. Dintwe, for example, was directly responsible for Fraser’s demise. They are, therefore, not Zuma functionaries.
The fact that the final step against Abrahams was taken by the Constitutional Court, and wasn’t a political decision, adds legitimacy to his departure. The clarity of the judgment on the constitutional and legal aspects of the position of the country’s prosecutions’ boss, and independence of the prosecutions authority, deepens the democratic character of criminal justice.
Court’s role in deepening democracy
The court’s ruling on Abrahams follows a trend of taking decisions that have promoted democracy in a tangible way. A few examples illustrate the point.
In 2016 the Court reaffirmed that remedial decisions taken by the Public Protector were binding on all public officials and representatives of the country.
The court also ruled that the appointments of two previous prosecutions bosses were invalid.
Another example was the court’s interpretation of the parliamentary Speaker’s powers on no confidence motions. This entrenched the principle that the speaker can decide when voting would be by secret ballot or by public electronic voting.
The court also set aside a decision by the former National Director of Public Prosecutions, Mokotedi Mpshe, to withdraw corruption charges against Zuma.
In another key judgment, the court ruled that political parties should disclose the sources of their private funding.
Abrahams’ demise has created the public expectation that stronger action can now be taken against corruption. The ongoing revelations of state capture excesses have left the National Prosecuting Authority with no room to sidestep prosecutions.
If there’s no action it will be difficult for Ramaphosa to refute the claim that those accused of corruption continue to enjoy political protection on his watch. His promise of a new era of clean governance and efficient government is unquestionably bound to visible prosecutions without fear or favour. Urgent progress with prosecutions is just as important as his economic renewal agenda.
But progress in the fight against corruption doesn’t only depend on the National Prosecuting Authority. The police – and special investigative units in particular, such as the Hawks who are responsible for criminal investigations – would have to be seen to be doing their jobs. Their efficiency and effectiveness in investigations are crucial to the success of prosecutions. Serious reform of the police services is therefore equally important for effective prosecutions.
Arguably, one of the most serious challenges facing the prosecutions authority is how to address the public perception that it’s politically compromised. A range of factors account for this.
Firstly, there’s the high turnover of national directors which in turn is a symptom of political pressure. The incumbent’s term of office is ten years, in line with fixed, non-renewable terms for the Public Protector and judges. But since 1998 the five permanent and two acting national directors have all, on average, lasted only three years. On top of this, two previous commissions of inquiry against national directors – the Hefer and Ginwala inquiries – happened within a politicised environment.
There have been a number of cases that have pointed directly to political manipulation of the National Prosecutions Authority. These include the abuse of the Hawks’ and the prosecutions authority’s investigations against former national tax commissioner Pravin Gordhan and other tax officials to protect Zuma’s interests. So was Mpshe’s decision to rescind corruption charges against Zuma.
An immediate priority for prosecuting authority is to change this legacy of political abuse, and to cultivate credibility.
What needs to be done
Ramaphosa’s campaign of renewal will initially require many more investigations of politicians to combat corruption in the public sector. That entails potentially more political complications for him and the risk of creating more political enemies. It will also threaten deeply entrenched patronage networks in the governing ANC.
For the National Prosecuting Authority, only after it has shown visible success in significantly reducing corruption in the public sector can its political exposure be reduced. The most critical factor in changing its negative legacy is for the prosecutions authority to safeguard its independence.
The latest Court judgment has made an important contribution to this. It has provided clarity on the prosecutions boss’s tenure of office. It also instructed the National Prosecuting Authority Act to be changed to curtail the president’s powers to appoint and dismiss the national head of prosecutions.
Independence in terms of decision making is equally important, but does not form part of the court judgment. This will require consistency and a show of high levels of integrity and competence by the National Prosecuting Authority.
To promote its independence, it would help if its leading figures are career professionals with no public political profiles. The appointment of Silas Ramaite as the acting National Director of Public Prosecutions, is a good beginning.