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Nxasana inquiry: While questions abound, answers are not

Nxasana inquiry: While questions abound, answers are not

On Saturday afternoon the Presidency announced that President Jacob Zuma had decided to institute an inquiry into whether Mxolisi Nxasana was fit to hold the office of National Director of Public Prosecutions, a move that was not unexpected. Nxasana has been accused of not properly disclosing his criminal record before being appointed and, we’re told, was not given Top Secret clearance as a result. But the timing of this announcement, the context in which it occurred, and the fact that clearly in this country control of the prosecutorial machinery is politics through other means, means there are far more questions than answers. And there are serious questions, which will now almost certainly never be answered. By STEPHEN GROOTES.

The decision to institute an inquiry such as this is not one that a sitting president should take lightly. The NDPP Chief is a person who sits at the apex of the entire justice system; they are appointed for one non-renewable ten-year term. The mechanism for ejecting them is complicated: they can be suspended by the president, who must then institute an inquiry. That inquiry investigates, makes a recommendation, and then it all goes to Parliament. The previous time this happened, when Vusi Pikoli was suspended by then-president Thabo Mbeki as he was appointed to charge the National Police Commissioner with corruption (correctly, as it turned out), Pikoli was immediately suspended. (The point of the suspension was to make sure that he could not actually go ahead with the decision to charge.)

Which means that Mac Maharaj was surely expecting urgent questions around whether Nxasana had also been suspended when the news came through early on Saturday afternoon. The fact that he could not say whether Nxasana had been suspended or not, was, quite frankly, downright bizarre, and equally scary.

If the answer is that he has not been suspended, then he is still the NDPP, with all the legal powers of that office. Which means he could go ahead and re-charge Richard Mdluli. Mdluli, don’t forget, had the charges against him withdrawn by NPA commercial crimes head Lawrence Mrwebi. Mrwebi is now accused of serious crimes himself, but could also face criminal charges just for that decision (which shows you how wrong it was: the Supreme Court of Appeal has also ruled that decision was so blatantly incorrect that action should be taken against him.).

More interestingly, Nxasana, if still in office, could also go ahead and re-charge Zuma himself, should he want to.

So you would expect, then, that he would have been suspended, and we would know he had been suspended. That would make sense: with the news of the inquiry, comes the suspension. Why, then, was there no immediate clarity on this?

Veteran journalist Andrew Trench suggested on Twitter that perhaps they couldn’t find him, to give him the letter of suspension. The Sunday Times reported Nxasana heard about the inquiry through the media, and wasn’t formally told. The Presidency may well differ on that version of events.

But while we’re here, why on a Saturday afternoon in the first place? What had happened, or was about to happen, that meant this news had to be made public on a Saturday? Perhaps because the courts are closed during the weekend, and thus it would be harder to institute charges before Monday morning?

But that’s a stretch. The National Prosecuting Authority is not a spaza shop you can just play around with on the weekend because you suddenly have some time to deal with it. By doing this out of the blue and on a weekend, it’s another indication of the lack of respect Zuma appears to have for the organisation.

However, this question about the suspension matters also because of who would run the show if Nxasana is indeed suspended. If advocate Nomgcobo Jiba, she was also in charge of the NPA during the lengthy period between Advocate Menzi Simelane’s decision to take leave, the striking down of his appointment, and then the long wait for the appointment of Nxasana. Jiba’s husband, Booker Nhantsi had a criminal record that was expunged by Zuma, so that he could take another government job, after stealing money during his previous employment. She also managed to inspire international outrage by taking the decision to charge the Marikana miners with murder, shortly after the Marikana shootings.

Which would mean that for a cynic, if Jiba is now in charge, Mdluli and Zuma are both safe.

Defenders of the president could quite rightly look at all the talk, all the writing, all the commentary around his treatment of the NPA over the years, and suggest that it is all from people who don’t actually know what is going on. People like this writer, who rely on snippets of information, sometimes from those with agenda. They could claim that we don’t know why the president has taken certain decisions, and therefore we should be more circumspect when inferring motive.

But the reason for that is that Zuma himself does not give us any information about why these decisions are taken. Democracy is not only about voting once every five years, but also about a constant flow of information. Even in court, during the Simelane decision, no clear indication was given as to why he was considered the best person for the job. When Nxasana was appointed, Zuma did not explain what made him so special. Why was he the best possible person to take over this crucially important job? We don’t know. Zuma won’t tell us. He may say he has no legal obligation to. Fine. Then we have to rely on the information that we do have. And we have to ascribe motive from there.

But that is all to lament the present. What of the future; what will happen next?

The next crucial question (apart from whether Nxasana is suspended or not) is who will actually chair the inquiry. It’s the usual story: know the person in charge of the process, have a good chance of predicting the outcome. Particularly in an environment as this one will be. Frene Ginwala chaired the last one; it seems unlikely this time that the person in charge of this process will be as neutral and open-minded as she was. But we could still be surprised.

In the longer run, this is yet another nail in the coffin of the NPA itself. And with it, the entire justice system as a whole. Every time those at the head of the NPA are in turmoil, so is the organisation. Every time a politician meddles with it, or appoints someone who less than the best as its head, the institution is damaged. This has now happened time and again.

The NPA, and with it our democracy, is the collateral damage of the use of it for politics through other means.

To build up its reputation, someone, somewhere, may one day have to start from scratch.

It is not the only thing that is damaged here. So is Zuma’s reputation. Every time he does this, the impression that he is prepared to meddle with the criminal justice system to protect himself gains more traction. It is now so entrenched that it is simply unshakable. And that damages both himself and the ANC as the ruling party. Which has done nothing to show that it can be trusted with our legal system. DM

Photo: {L} Mxolisi Nxasana (Paul Botes, Mail & Guardian), {R} President Jacob Zuma responds to his political rivals in Parliament in Cape Town on Thursday, 20 February 2014 following his State-of-the-Nation address. Picture: GCIS/SAPA


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