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Ethical, capable leaders in SA’s criminal justice system are critical to protecting the rule of law

Ethical, capable leaders in SA’s criminal justice system are critical to protecting the rule of law
National Director of Public Prosecutions Shamila Batohi and SIU head Andy Mothibi broke down their own appointment processes during the panel discussion before the ISS workshop. (Photos: Gallo Images / Phill Magakoe | Xasbiso Mkhabela)

How can South Africa consistently ensure ethical and capable leaders are appointed? Some of the country’s best legal and policy minds gathered on 20 March 2024 in Johannesburg to discuss how top appointments in bodies like the National Prosecuting Authority, Hawks, South African Police Service and Special Investigating Unit should be made.

State Capture was enabled by the appointment of corrupt or incompetent people to leadership positions in key institutions, starting with the criminal justice system. Former president Jacob Zuma’s first appointment after leaving office was Lieutenant-General Richard Mdluli to head of the powerful South African Police Service (SAPS) Crime Intelligence Division. Mdluli was later imprisoned for violent crimes he had previously committed as a police officer and faces serious corruption charges stemming from his control of Crime Intelligence. This pattern was repeated across the criminal justice and state intelligence agencies and contributed to the substantial rise in organised crime and criminal violence that started early in Zuma’s presidency.  

Appointing ethical and capable senior leaders is critical to the future of South Africa’s anti-corruption and crime-fighting agencies and the country’s long-term prosperity. With a range of key senior leaders, including National Director of Public Prosecutions Shamila Batohi and the head of the Hawks, Lieutenant-General Godfrey Lebeya, due to vacate their posts in the near future, this issue clearly merits priority attention. Batohi, as well as three of her deputies, are set to complete their terms in 2025. A number of top SAPS leaders are also set to retire within the next two years. 

President Cyril Ramaphosa should be commended for exercising his constitutional authority to make such appointments responsibly. Unfortunately, to date, little has been changed to ensure that future presidents are constrained from appointing leaders who might seek to undermine the country’s safety and security agencies. 

But how can South Africa consistently ensure that ethical and capable leaders are appointed? 

Some of the country’s best legal and policy minds gathered on 20 March 2024 in Johannesburg to discuss how top appointments in bodies like the National Prosecuting Authority (NPA), Hawks, SAPS and Special Investigating Unit (SIU) should be made. The event sought to formulate recommendations to be considered by the new administration that will take office after the 29 May elections.

Need for a public process and ‘support without interference’

“We’ve spent much time looking at how State Capture worked and how key institutions like the NPA, Hawks, SAPS and our intelligence agencies were captured by appointing the wrong people to key positions. We made recommendations at the Zondo Commission, but there is still a lot that needs to be done on this issue,” said Gareth Newham, head of the Justice and Violence Prevention programme at the Institute for Security Studies (ISS). 

In a live-streamed opening panel discussion, Batohi was asked about her own 2018 appointment process, which involved publicly televised interviews. She said appointing senior leaders through a public process could enhance citizens’ trust in the criminal justice system. Moreover, it gave the heads of institutions confidence that they had public support to execute their functions.

On the same panel, advocate Andy Mothibi, the head of the SIU, indicated that, though not public, his own appointment process had also been “objective and competitive”. He recommended that all candidates for senior appointments in the criminal justice system be screened and subjected to integrity testing and lifestyle audits. All such appointments should be made public as these enhance the credibility of the institutions. 

“The National Anti-Corruption Strategy is saying that we should strengthen our anti-corruption entities like the NPA and the SIU, but there is also citizen activism that contributes to the whole-of-society approach that we have adopted and are busy implementing. The public has a role in the recruitment process and the execution process,” he said.

Read more in Daily Maverick: Crime and Justice Archives

International criminal justice expert Professor Chris Stone, from Oxford University, acknowledged the strides made in fighting corruption in South Africa. He stressed the need for corruption-fighting agencies to have political support if they are to be effective. He cited the example of Sierra Leone where the highly regarded auditor-general, widely praised for her work to improve government accountability and uncovering corruption, was controversially suspended by the president. “Anti-corruption agencies can’t afford to be too isolated,” he said. “They need both independence and political support.”

Both Batohi and Mothibi affirmed the need for “support without interference”. 

Batohi assured the audience she had Ramaphosa’s full support, while she had not experienced interference in her work. Although the President was authorised by legislation to appoint all the top leaders of the NPA, “all of the recommendations I made for senior appointments in the NPA were accepted”. 

Batohi acknowledged the support given to her by some of her predecessors, and said she remained committed to protecting the progress made at the NPA in establishing its independence. “I assure you, I will not be leaving with 30 days’ notice. It is when good people do nothing that injustice and corruption thrive. We are going to fight to make sure we have institutions people can truly be proud of.”

Reducing presidential abuse

Workshop participants discussed a range of questions linked to strengthening senior leadership appointments. While the President has the constitutional authority to appoint the national director of public prosecutions (NDPP), participants debated the potential for a law to be passed requiring a transparent, competitive and merit-based process.  This could reduce the potential for presidential abuse of the authority to make NDPP appointments, as had occurred during Zuma’s presidency.

Participants generally agreed that the process should be transparent and competitive and involve recommendations from an independent panel on the most suitable candidates. The absence of such a process would further undermine crime and corruption-fighting agencies, and facilitate renewed State Capture

Read more in Daily Maverick: 2024 elections

The day-long session was attended by representatives from the Department of Justice, civil society, academia, political parties, as well as local representatives of international donor agencies who provide technical support to South Africa. The workshop agreed to advocate for greater transparency, accountability and independence relating to senior appointments within the law-enforcement and anti-corruption agencies. 

Deliberations from the workshop will be used to formulate a set of recommendations on future appointment processes in these agencies. The ISS aims to work further to promote the need for attention to this issue, including by engaging the new administration on the need for priority to be given to this issue as part of building a resilient and more effective anti-corruption and crime-fighting system. DM

The workshop is the first in the ISS’s Driving Justice event series, which will explore key opportunities for strengthening the criminal justice system. For more information about the work of the ISS on crime and justice in South Africa, and to view the webcast, see here.


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