The recent judgment of South Africa’s Constitutional Court – declaring invalid the termination of the appointment of Mxolisi Nxasana as National Director of Public Prosecutions (NDPP), as well as declaring invalid the subsequent appointment of Shaun Abrahams to that position – serves as a reminder of the constitutional difficulties that may arise when a sitting President is also a criminal suspect.
Several commentators in the United States have expressed great anxiety that President Donald Trump might abuse his power as President of the United States to try and interfere in (or even to halt) the investigation into the alleged criminal actions of Trump, his family members and many of his political allies. Because the US Constitution is outdated and the law on this point rather vague, it is unclear to what extent US investigators and prosecutors are protected from improper interference by Trump or anyone else in his administration.
On paper, South Africa is different. The independence of the National Prosecuting Authority (NPA) is guaranteed by the South African Constitution, which prohibits the President from abusing his power and from unlawfully interfering in the appointment or removal of the NDPP. (The President – as well as anyone else – is also prohibited from unlawfully interfering in prosecutorial decisions.)
The Constitutional Court judgment in Corruption Watch NPC and Others v President of the Republic of South Africa and Others is not only important because it gives finality on the position of the NDPP, (who until today (Monday) was thought to be Shaun Abrahams), but also because it again affirms the importance of the independence of the NPA. The majority judgment states in this regard:
The NPA plays a pivotal role in the administration of criminal justice. With a malleable, corrupt or dysfunctional prosecuting authority, many criminals – especially those holding positions of influence – will rarely, if ever, answer for their criminal deeds. Equally, functionaries within that prosecuting authority may… ‘be pressured… into pursuing prosecutions to advance a political agenda’. All this is antithetical to the rule of law, a founding value of the Republic. Also, malleability, corruption and dysfunctionality are at odds with the constitutional injunction of prosecuting without fear, favour or prejudice.
As the Constitutional Court points out in the judgment, “improper interference may take any number of forms”, including “downright intimidation”, “improper promises or inducements”, or attempts corruptly to influence the “decision-making or functioning of the NPA”.
The improper interference which gave rise to this judgment came in the form of an improper inducement from former President Zuma to Mr Nxasana in the form of a R17 million golden handshake, offered to him to secure his “resignation”.
The judgment is rather scathing about the behaviour of former President Zuma and his legal advisor Michael Hulley. According to the Constitutional Court, Zuma wanted to get rid of Mr Nxasana at all costs “by whatever means he could muster”, first using a stick (the threat of an inquiry and removal from office) then a carrot (the offer of a golden handshake).
Whilst the inquiry was in its preliminary stages, the former President pursued a parallel process in which Mr Nxasana was first offered – in a draft settlement agreement – R10 million. As indicated earlier, he did not accept it. What plainly evinces how desperate former President Zuma was to get rid of Mr Nxasana is that this was followed by a draft settlement in which the amount was left blank. Mr Nxasana was being told to pick whatever figure.
The Court does not use the phrase, but suggests that Zuma offered Nxasana a huge amount of money which looked suspiciously like a bribe in order to get rid of him:
The inference is inescapable that he was effectively buying Mr Nxasana out of office. In my book, conduct of that nature compromises the independence of the office of NDPP. It conduces to the removal of ‘troublesome’ or otherwise unwanted NDPPs through buying them out of office by offering them obscenely huge amounts of money.
The Constitutional Court held that this constituted an abuse of office by Zuma because it amounted to interference with the independence of the NPA. While the NPA Act does allow the NDPP to retire before the end of his or her term of office (the NDPP is appointed for a non-renewable term of 10 years), in this case, Nxasana “retired” not because he wanted to, but because he was first threatened and then offered a huge payout by Zuma to do so.
As the court noted, to allow a sitting NDPP to be paid more than he is entitled to in terms of the law when he retires early “give rise to the real possibility of NDPPs being bought out of office”. That compromises the independence of the office of NDPP.
The judgment means that there was no vacancy in the office of the NDPP when former President Jacob Zuma purported to appoint advocate Shaun Abrahams to that post. Abrahams was, therefore “appointed” to a post that was not vacant.
As the Constitutional Court explains, because it invalidated the termination of Nxasana’s appointment, the appointment of Abrahams was also illegal, as it depended on the termination being legal. As the termination of Nxasana’s appointment was invalid there was no legal foundation for the appointment of Abrahams. In summary:
Former President Zuma appointed Advocate Abrahams following his unlawful removal of Mr Nxasana. That removal was an abuse of power. Advocate Abrahams benefitted from this abuse of power. It matters not that he may have been unaware of the abuse of power; the rule of law dictates that the office of NDPP be cleansed of all the ills that have plagued it for the past few years. It would therefore not be just and equitable to retain him as this would not vindicate the rule of law.
From a legal perspective, the most interesting aspect of the judgment was the decision by the majority not to allow Mr Nxasana to return to his job as NDPP as would normally be the case. Given the fact that his removal from office (through the golden handshake) was unlawful and invalid, the legal position would normally be that the situation returns to what it was before the unlawful act occurred. Ordinarily, therefore, Mr Nxasana would have to resume office as he did not vacate the office validly. All that would have to happen is for him to physically resume office.
But the majority decided that this was not a “just and equitable” outcome. In order to ensure stability at the NPA and to uphold the rule of law, it was, therefore, necessary to rule that Nxasana was not permitted to get his job back. In this regard, the majority stated that it had sympathy for Mr Nxasana because he was subjected to “undue, persistent pressure” by Zuma and Hulley. However, he could not be allowed to return.
Effectively, although Mr Nxasana strongly protested his fitness for office, he was saying he was willing to be bought out of office if the price was right.
As much as I sympathise with him, I do not think that is the reaction expected of the holder of so high and important an office; an office the holder of which – if she or he is truly independent – is required to display utmost fortitude and resilience.
The minority advances a compelling argument that the majority might have been wrong to make this order. As he had never legally left his post, argued the minority, it was not a matter of the court deciding whether he should be reinstated or not. It declared invalid his removal from office, which means he was still the NDPP.
In any event, said the minority, the NDPP could only be removed from office in terms of sections 12(6) and (7) of the NPA Act. This would require an enquiry into his fitness to hold office as well as a vote in the National Assembly to support his removal. It was therefore not for the court to interfere with this legal process and pre-empt any enquiry into Nxasana that may be held.
In this case, no enquiry was held and no pronouncement on the existence of one or more of the listed grounds has been made. This underlines the inappropriateness of holding that Mr Nxasana should not return to office. Allowing him to return to office, does not mean that he is fit to continue in the office. If his involvement in the conclusion of the settlement agreement renders him unfit, it would be open to the President to invoke section 12(6) and establish an enquiry to determine his fitness to hold office. If found unsuitable, Parliament will be involved in his removal.
But whether one agrees with the remedy imposed by the majority or not, its judgment stands. This means that from the moment the Constitutional Court handed down the judgment, Shaun Abrahams ceased to be the NDPP (although the court ruled all his previous decisions stand). Meanwhile, Mr Nxasana must pay back the golden handshake while he is also out of a job, the very job he was persuaded or intimidated into leaving.
This means at the time of writing the NPA is without a leader. However, the President is empowered to appoint an acting NDPP from among the Deputy National Directors. And in terms of the court order, the President must also appoint a new NDPP within 90 days.
Let us hope President Ramaphosa appoints a credible person to this position, one who is fearless and incorruptible, who is not beholden to political or commercial interests, one who is politically astute but not beholden to any political party or a faction within the governing party, nor to private business interests.
Such an appointment will not magically restore the credibility of the NPA, but it will be a first step in doing so
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