Shamila Batohi appears to be one of those people who have a good sense of timing. Nearly 10 years ago, in early 2009, it was clear the NPA was heading for a political train smash. Batohi took a job of Senior Legal Adviser to the Prosecutions team at the International Criminal Court. That decision was surely wise at the time, and is looking even wiser now. She had already become the first woman to be a Director of Public Prosecutions, running the show in KwaZulu-Natal. Now, she is the first woman to head the NPA itself. A near-decade away from all of the shenanigans of our recent past means she is both untainted and undamaged, and yet still an insider to the NPA.
The context in which she was appointed is also important. By the time he appointed Advocate Shaun Abrahams as NDPP, now former president Jacob Zuma didn’t even bother holding a press conference. He simply issued a statement. He also did this with his previous appointment of Mxolisi Nxasana. It was already known at the time that Abrahams was close to Advocate Nomgcobo Jiba, whose husband had had his criminal record expunged by Zuma.
This time around could not be more different – a proper public address (in daylight…) by the President, following an unprecedented process in which he did not do what both Thabo Mbeki and Zuma had done, in merely using their powers under the law to make the appointment. Rather, it was the result of a public process that saw people answering questions on live TV, similar to the process of appointing the Public Prosecutor.
Then there is the person of Batohi. She is not anyone’s stooge, that much is clear. She gave a brief speech, with the obvious knowledge that this was the moment, the best and perhaps the only moment, in which to stamp her authority on things. She told prosecutors at the NPA:
“Today, your NDPP stands with you, and together we stand for justice and the nation.”
She mentioned the various elephants in the room by speaking about the divisions in the NPA. She did not do what Abrahams did during his first public appearance, when he first sounded a warning to some prosecutors, and then made promises he could not keep. And while she did not take questions, she did not duck and dive either.
“We in the NPA have important work to do,” she said, “which includes devoting our efforts to holding accountable those who have corrupted our institutions, who have betrayed the public good and the values of our Constitution for private gain, especially those in the most privileged positions of government and corporate power.”
Mr Zuma, it looks like she is not afraid of you.
Of course, there is much hard work to do. While the question of whether Zuma still holds important political power can be debated (endlessly) it is possible that people who hold important political office could face criminal charges. Batohi may have to sign off on cases involving people like Ace Magashule, and all those implicated in the Zondo Commission of Inquiry into State Capture. None of that will be an easy task, and she will likely face accusations of bias on multiple fronts. She will have to face those down, and ensure that the prosecutors who do the work are given the proper support and resources to win convictions. If they don’t, her term will be marked as the time that those involved in State Capture escaped justice.
The history of the NPA suggests that there is no way to fix all problems facing South Africa. Bulelani Ngcuka resigned due to the fallout of the investigation into Zuma. Vusi Pikoli was forced out over the investigation into Jackie Selebi. Judges struck down the appointment of Menzi Simelane. Mxolisi Nxasana left after endless disputes with Zuma, and the Constitutional Court struck again saying that Abrahams was not properly appointed because of the way Nxasana left.
In the meantime, it could look like the NPA is like so many other government organisations, hopelessly divided and riven with factions. And, to make matters more difficult, the NPA has never really been in proper apolitical working order (the first NDPP was Ngcuka, who was accused by Zuma of interfering in his prosecution on the Zuma Spy Tapes). This means there is no road map, no course to go back to. Instead, she had to create a course of her own.
However, things have changed dramatically around this office.
Perhaps most importantly, two of the people who appear to have caused the most trouble in the NPA in terms of politics, and the cases that mattered (which means, they involved Zuma), are not currently in the frame. The NPA has four deputy heads. It is Advocate Nomgcobo Jiba, one of them, who has had a starring role in so many Supreme Court of Appeals rulings. She has been joined by Commercial Crimes Unit head Advocate Lawrence Mrwebi. They will dispute claims that they were acting for Zuma. But their conduct (and the criticism they received for it from the SCA) in cases relating to the Zuma Spy Tapes, former Police Crime Intelligence Head Richard Mdluli and former KZN Hawks Head Johann Booysen certainly shows a pattern. But they are currently suspended, and facing an inquiry into their fitness to hold office. While they are likely to use every legal right they have to frustrate that process in court, they are still on the defensive, which opens up the space for the new blood. (Unlike before, they are unlikely to get political support)
Zuma has, in the past, shown that he will not support someone once they have outlived their usefulness to him, especially in the legal arena (Western Cape Judge President John Hlophe appeared to attempt to intervene in Zuma’s favour in 2008, and yet Zuma appears not to have helped him in any way).
Then there is the very nature of the NPA. It is quite different from most other government institutions. The big decisions that matter in the NPA are about prosecutions. There is now settled case law that the NDPP does not have the power to institute a prosecution; that is given to the Directors of Public Prosecutions in the provinces, and in certain categories of crime. But Batohi does have the power to review a decision about a prosecution. She can both overrule a decision to prosecute, and overrule a decision not to prosecute. That means that for the cases that matter, the decision from her desk is final (unless overruled by a judge). This means that she has perhaps more power than, say, the CEO or Chairman of Eskom, in terms of the decisions that matter at their institution.
Our politics has also changed fundamentally since 2009 when Zuma was able to use political power to stop his prosecution. Now, the situation in the ANC is nowhere near what it was then. For those in the party who object to a decision around a prosecution, there will be those in the party who will support it. There is an element of a power vacuum. In short, Ramaphosa simply does not have the political power now that Zuma had 10 years ago. This gives Batohi space in which to operate.
Then there is the multitude of cases which have settled various issues around the powers and procedures within the NPA. Many of these, inevitably, have revolved around Zuma. So, there is a precedent for when certain things can happen, and when they can’t, particularly with regard to decisions to prosecute. This means Batohi has a clear roadmap. Not that she is likely to need one, given her track record.
At the same time, symbolism matters. Just having a new head who is not politically tarnished is a first for the NPA. If there are a few important decisions that show that the new head is independent and impartial, and those decisions get much attention from the public, that alone can start to restore some faith. In other words, if the Zuma prosecution goes ahead speedily (from the side of the NPA at least), or if other investigations into other political figures are dealt with properly, many people may start to have faith in the institution for the first time in over a decade.
Still, it would be hasty to attempt to judge Batohi on her first few months in office. The political prosecutions that will matter will, obviously, involve Zuma and those implicated in the Zondo Commission. But before people can be charged, the Hawks have to investigate. And if those investigations are not up to scratch, prosecutions will fail. This appears to have already happened with regard to the Estina Dairy scandal after the NPA had to withdraw charges relating to the Gupta family last week.
So difficult has the situation within the NPA become that it would be wrong to expect quick solutions, and for reform to happen overnight. But, for the first time in 10 years, there is hope. The NPA occupies a central place in our country. If it fails, the entire criminal justice system fails. If it is reformed, so the entire system stands a better chance of being fair, just and efficient. And within that lies the hope of improving the rule of law, and improving lives. DM
"We must have a pie. Stress cannot exist in the presence of a pie." ~ David Mamet