The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
The new Code of Conduct for public prosecutors — drafted my National Director of Public Prosecutions (NDPP) Menzi Simelane in consultation with the Minister of Justice – which was published earlier this week, should be welcomed. Given the fact that the National Prosecuting Authority (NPA) has been mired in controversy over the past few years, this Code can be viewed as a first step towards rehabilitating the image of the NPA and towards re-establishing its credibility.
Criticism of the NPA has not always been fair or well informed. On occasion it has been based on the ignorance of the public (or of some politicians) about the legal issues in play. On others occasions criticism has been informed by the shameless attempts of crooks and charlatans to try and politicise the prosecuting process in order to escape prosecution for corruption and other serious crimes. Who will forget that Brett Kebble and some of his associates had argued that he was being pursued because he was a victim of a political conspiracy against him?
But the NPA has not always acted in a way that instils confidence in its independence and impartiality. There is no doubt that the manner in which the NPA handled the Zuma case — first declining to prosecute him despite claiming that there was a prima facie case against him and then timing its eventual decision to prosecuting him in a manner that appeared to have been influenced by political considerations — tainted the credibility of the NPA.
Apart from the Schabir Shaik and Jacob Zuma cases, the NPA – along with the relevant law enforcement agencies — have also shown a worrying reluctance to deal in any credible manner with the overwhelming evidence of corruption in the arms deal. This gave the appearance that political — rather than legal — considerations played a role in decisions about arms deal investigation and prosecution.
On paper the new code of conduct addresses these concerns. It states, quite correctly, that: “the prosecutorial discretion to institute and to stop criminal proceedings should be exercised independently, in accordance with the Prosecution Policy and the Policy Directives, and be free from political, public and judicial interference”. It also requires prosecutors to “avoid participation in political or other activities which may prejudice or be perceived to prejudice their independence and impartiality”.
There are, however, two concerns that arise from this code of conduct.
First, the code states that prosecutors, when exercising their duties, must “take into consideration the public interest as distinct from media or partisan interests and concerns, however vociferously these may be presented”. On its face there is nothing controversial about this statement. Prosecutors should not be swayed by the often uninformed and even hysterical opinions expressed by politicians or members of the media.
However, in a one-party dominant democracy in which the dominant party as well as many members of the civil service and the various independent bodies such as the NPA have a tendency to conflate the party and the state, the notion of the “public interest” can be problematic. From a certain ideological perspective, the “public interest” can easily be viewed as identical to the interest of the governing party and its leaders.
It must be impressed upon prosecutors (including the NDPP, who in the past has acted in a manner that seems to suggest that he equates the interests of the governing party with the public interest) that when they act in the public interest, they have a duty to protect the general public from criminal activity without fear, favour or prejudice. It is not their duty to protect the ruling party and its leaders in the name of “political stability” or some other vague notion of the public interest.
No matter whether a crime was committed by an individual living in Houghton or Soweto, whether the accused is the President of the country, the Police Commissioner or a homeless person, whether he or she is rich or poor, or black or white, it will almost always be in the public interest vigorously (but fairly) to prosecute the accused if sufficient evidence exist to have established a prima facie case against the accused.
The dropping of charges against Jacob Zuma – on rather spurious grounds, relying on an overturned judgment from a Hong Kong court which was shamelessly plagiarised — was clearly not in the public interest. It was also not done in conformity with the Prosecution Policy as required by the Constitution and the NPA Act. Although it was clearly in the interest of the governing party to drop charges against the soon to be elected President, it is far from clear that this was in the public interest.
The distinction between the public interest and the interest of the political party who happens to have garnered the most votes at the last election is not always easy to distinguish. Where that party is electorally dominant and where a perception has taken hold that it is in the public interest that the party continues in power, even relatively fair-minded people (like Willie Hofmeyer) who happen to be members or avid supporters of the governing party could be tempted to conflate the public interest with that of the governing party. Prosecutors should avoid this mistake at all cost. Only time will tell whether they will do so in future.
Second, no matter how independent, impartial and fair the NPA is, high profile and well-connected individuals in the private sector and powerful politicians aligned with the ANC will not be prosecuted if credible allegations against them are not vigorously investigated by the relevant law enforcement agency. However, the South African Police Service – including the Hawks – have not yet demonstrated that they will always investigate corruption and maladministration without fear or favour.
The arrest of John Block, the ANC chairperson in the Northern Cape, may be considered as a good sign in this regard. But one case does not establish a trend, so it is far too early to tell whether ANC-aligned politicians and businessmen will be investigated vigorously when the evidence suggest that this is required — even when this may not be politically acceptable to the ANC. If South Africa is to tackle the increasing problem of corruption, even politicians and businessmen who are allies of the President or of other powerful politicians must be seen not to be above the law.
When corrupt businessmen believe — rightly or wrongly — that they can “buy” insurance against investigation and prosecution by donating millions of Rand to the ANC and its Youth League (as Brett Kebble did) or by giving away fake BEE shares to family members of the President or other well-connected ANC leaders, the entire business environment will become further corrupted and this will lead to more — not less — corruption.
The NPA has a difficult task. Whenever it decides to prosecute a politician or someone connected to a politician, the accused will invariably claim that there is a political conspiracy against him or her. (This is not unique to South Africa: in the USA the Republican candidate for a Delaware Senate seat claimed that she was being targeted as part of a political conspiracy when news emerged that she was being investigated for campaign finance fraud.)
Given the manner in which the NPA had been tainted in the past, such claims will continue to have some traction. It is only when the NPA acts fearlessly and bravely and is consistently seen to act impartially and independently that such claims will be able to be dismissed with the contempt that they deserve. Until then, many well-connected shysters and crooks will continue to try and discredit the law enforcement agencies and the NPA if they dare to go after these crooks.BACK TO TOP