On Monday, President Cyril Ramaphosa was finally gifted the one thing he has probably wanted the most, ever since he ascended to power at the Union Buildings: a free hand to appoint a new National Director of Public Prosecutions. He now has to comply with Monday’s ruling by the Constitutional Court that such an appointment must be made within 90 days. It is Ramaphosa’s chance, at the very least, to remove an entire swath of the Zuma’s senior appointees. It is also a chance for the entire country: depending on Ramaphosa’s decision, we could have a properly neutral, effective and efficient NPA for the first time in our history.
There are several elements to Ramaphosa’s decision in appointing a new National Director of Public Prosecutions (NDPP) that will make it a complicated choice. Just those elements alone reveal how politicised the NPA has become, and how difficult it will be to make it properly neutral.
The last time we had a new president in office with the freedom to appoint a new head to the NPA was in 2009. Zuma had just been elected into office. Kgalema Motlanthe, the sort of temp president, had formally decided to remove Advocate Vusi Pikoli from the position, after the Ginwala Inquiry found room for him both to be removed and to stay in office (of course, many years later, all of this is still hugely contestable).
To many of his eternal shames, Zuma appointed Advocate Menzi Simelane to the post. This revealed Zuma’s hand in a single moment. Simelane had been found to have lied under oath during the Ginwala Inquiry over the suspension of Pikoli. In case your memory has faded just a little, Pikoli insisted on charging then National Police Commission Jackie Selebi, then President Thabo Mbeki insisted he shouldn’t do that, and then suspended Pikoli when he tried to go ahead anyway on 24 September 2007, less than three months before the ANC’s Polokwane Conference.
Suddenly the man who lied to an Inquiry was in charge of the NPA. Several years later the Constitutional Court struck down that appointment.
The main reason for Zuma’s treatment of the NPA was twofold. One, he himself faced criminal charges and had to do whatever it took to stop them from being presented to a court. And two, he had learnt how Mbeki had been able to use the NPA against him, and so he could not allow anyone else to control it in the future.
Things appear to be different this time around. Ramaphosa does not face any criminal charges. While there will be those who will claim he should face some punishment for what happened at Marikana in August 2o12, that surely is a pipe dream. Ramaphosa has himself not been an overt victim of political manipulation of the NPA. In other words, he has nothing to fear, personally, from making a neutral appointment.
However, there are still many other considerations that he must also take into account. Chief among them, as always, in politics, is what is his main aim. If it is to create a properly neutral NPA, and to do it in the shortest possible time, there are people of proven integrity in our society who could do that and also be expected to do that. Imagine a former judge, or someone like former Deputy Chief Justice Dikgang Moseneke. Or even Pikoli himself.
There are many in society who would applaud such an appointment. But it could also come with certain costs. Would it really be wise for Ramaphosa to appoint someone who gave no consideration to politics? Imagine, for example, what would happen if the NPA were to announce tomorrow that it was investigating claims of murder against Deputy President David Mabuza over the recent report in the New York Times? This would surely upset the tenuous power balance right at the top of the ANC, and the country. Mabuza and ANC Secretary-General Ace Magashule currently appear to be on different sides, they could suddenly both have something in common. And Mabuza could easily believe the new NPA head was acting on the orders of Ramaphosa, which would surely intensify the crisis.
And would the president want to appoint someone like Pikoli to such an important job when he has already shown that he would act in spite of the presidents’ wishes?
At the same time, a president who sometimes appears to need to go almost over the heads of the ANC’s top structures to the public itself could also gain greatly with such an appointment. Imagine, for example, how it would play in the campaign claim of a new “clean-up” underway to have someone like DA MP Glynnis Breytenbach in that position?
In some ways, what Ramaphosa may need is a person who is both neutral and understands politics. To put it bluntly (and surely unfairly), someone who would, for example, know that prosecutions of people in the upper echelons of the ANC are necessary, but will wait until the right time (i.e. after the elections).
However, there is another important consideration here. Ramaphosa, as things stand, could be president until 2029. Under the NPA Act a person is appointed national director for a non-renewable term of 10 years. So the president needs to pick someone who he knows that he can trust for a long time.
Of course, this has happened before. Mbeki picked Pikoli, presumably trusting that they could co-exist in their respective positions. And yet, within a relatively short time, they were at odds with each other. Ramaphosa would have to pick someone who not only he can trust, but someone with whom he will not walk into an accidental disagreement.
There are also other considerations. If the aim is a wholesale clean-up, then he may need to ponder whether someone from the inside of the NPA is needed. This would be someone with institutional knowledge, the kind of person whom Business Day suggested on Monday evening could actually be in the running – Rodney de Kock. He is currently the head of the NPA in the Western Cape. But that also carries risks. While it may appear that they are carrying out a clean-up, they may also be settling old scores within the NPA, which would not be the aim.
That means that an outsider may be preferable. But that also carries risks. Considering that Abrahams had built his own networks, an outsider may be vulnerable to sabotage. Abrahams himself is likely to try to remain at the NPA as long as possible, and just go back to his old position (one wonders what will happen to the salary he was paid while he was in the post).
Advocate Nomgcobo Jiba is still officially in position as one of the four deputy heads of the NPA, while Advocate Silas Ramaite has appeared invisible in public. Advocate Lawrence Mrwebi is also still officially there, even though Ramaphosa has started the process of removing him. All of this means that an outsider would arrive into a veritable hornet’s nest.
It is also worth considering Ramaphosa’s form in other important appointments. One of the key moves he made during his Cabinet reshuffle earlier in 2017 was surely the appointment of a new Minister of State Security. Considering the role of the spies during the entire Zuma era from Polokwane to its end (anyone remember David Mahlobo and his claims of imminent revolution?) this is surely a crucial post. In the end, the person Ramaphosa appointed was Dipuo Letsatsi-Duba, someone who most people outside the political world would not be well-acquainted with. But just her appointment suggests Ramaphosa trusts her. It is entirely possible that the same happens here, the appointment is someone who is not publicly well-known, but first and foremost is trusted by Ramaphosa.
In the end, there is much political calculation to be done here, but the only political analysis that really matters is that of Ramaphosa himself.
That, combined with what his actual aim is with the NPA, will determine who he appoints.
And whether that person could be the first National Director of Public Prosecutions in our history to complete their term. DM