OPINION: The NPA must not delay the inevitable
Once again our judiciary has made us proud in a historical judgement that could pave the way for reinstating corruption charges against President Jacob Zuma. Deputy Judge President Aubrey Ledwaba of the North Gauteng High Court affirmed the Democratic Alliance's argument of irrationality when former National Prosecuting Authority (NPA) head Mokotedi Mpshe decided to drop charges against Zuma.
In its ruling the judge said Mpshe should have proceeded with the case despite the contents of the so-called spy tapes. The DA has always argued that the conversation between former NPA head Bulelani Ngcuka and Scorpions boss Leonard McCarthy, and their motive to criminally charge Zuma, were not strong enough to affect the strength of the prosecution's case against Zuma and would not prejudice his right to stand a fair trial. While the court ruled that the NPA should review its 2009 decision that plunged the NPA into crisis, the question hanging on our minds now is how will the NPA move forward?
There is speculation that the Friday's High Court decision may be appealed and may even end up at the doors of the Constitutional Court. All eyes are now on how the NPA will proceed on this matter. Will the NPA reinstate the 783 charges against the resident, which will prove to be yet another blow to Zuma's political career following the ConCourt's unanimous ruling that he violated the Constitution when dealing with the Nkandla matter?
How NPA head Shaun Abrahams moves forward will be momentous given the history of the prosecution body riddled by controversies, executive influence and inquiries. In his ruling Ledwaba said Mphshe failed to act independently in reaching his decision to drop the charges. How the NPA proceeds will be a test of its adherence to the legal doctrine of independence and prosecuting without fear or favour. As the DA said: "every decision to prosecute or not must be made without fear or favour".
The NPA has a long history of political manipulation, perceived or real: directors that never seem to stay in their positions for very long; and breaches of independence. Many have likened the leadership of the organisation to that of a poisoned chalice. Its previous National Director of Prosecutions, Advocate Vusi Pikoli, left the NPA after refusing to drop charges against former SAPS Commissioner, now late, Jackie Selebi. In 2011, Advocate Menzi Simelane was found by the Supreme Court of Appeal unfit to hold office and that his appointment should be set aside, ending up at the ConCourt, which in turn unanimously affirmed the SCA's judgment.
The NPA in 2011 dropped charges against the SAPS's head of Crime Intelligence, General Richard Mdluli, despite independent legal opinion indicating that there was a prima facie murder case against him. There have also been suggestions that Advocate Nomgcobo Jiba and Specialised Commercial Crimes Unit head, Advocate Lawrence Mrwebi went to lengths to protect Mdluli. Judge John Murphy found that both "have not demonstrated exemplary devotion to the independence of their offices, or the expected capacity to pursue this matter without fear or favour".
Abraham's predecessor, Advocate Mxolisi Nxasana faced an inquiry into his fitness to hold office, which never saw the light of day, but instead was given a golden handshake of R17 million. It was rumoured that Nxasana was ready to reinstate charges against Mdluli. Before he left, Nxasana had commissioned an inquiry into the NPA lead by Justice Zak Yacoob and investigated by Kenneth Manyage. The inquiry, although not legally enforceable, would validate Nxasana's calls for the suspension of his deputy Jiba and Lawrence Mrwebi because the two were facing allegations of perjury for lying under oath.
The Yacoob report seemed to confirm all that was suspected of the relationship between Mrwebi, Jiba and Mdluli, which pointed to their roles in the withdrawal of the charges against Mdluli. Jiba is better known as Zuma's ally, untouchable. The conversation between Ngcuka and McCarthy on whether to charge Zuma before or after the 2007 Polokwane elective conference was illustrative of an NPA immersed in politics and subterfuge.
With that in mind and while we wait for the NPA's next move, the prosecution body needs to consider the enormity of the decision and the importance of being seen to be independent from any political pressure, including the executive. The fact of the matter is the prosecution team had a strong case against Zuma, regardless of whether he was charged before or after the electoral conference that saw him ascend to power. The president too, like his financial adviser Shabir Shaik, deserves to have a free and fair trial so that he can prove his innocence.
What should concern Abrahams is how seriously the NPA takes the principle of legality it is subjected to and the rules that govern the way in which it conducts its business. When applying his mind, he must also consider the unconstitutionality of dropping charges of cases with prima facie evidence. More importantly, when making the decision on how to move forward, Abrahams must remember that its independence is a constitutional imperative, guided by the principle of impartiality, and must therefore ensure that never again will its independence be breached.
Section 179(4) states that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. There is Xhosa idiom that says: Ityala aliboli. Yaye futhi alinqumi ayingomafutha ehagu. Direct translation: A case never rots and unlike animal fat (pig's fat), it never congeals. Justice will be served if the president faces a free and fair trial, and to appeal the court's ruling will only prolong the inevitable.
Andiswa Makanda is a content producer for the John Robbie Show on 702 for which she won a 2015 MTN Radio Awards. She is currently doing her MA in Media Studies at Wits University.