Cyril Ramaphosa. REUTERS
Cyril Ramaphosa. REUTERS

Now why did President Cyril Ramaphosa feel he needed a panel to help him appoint a new National Director of Public Prosecutions (NDPP) to succeed Shaun Abrahams? It is a reflection of the appalling state of affairs in SA that the president apparently does not want to be solely responsible for appointing our equivalent of a national attorney-general.

Constitutionally, the president has substantial powers of appointment. Ramaphosa seemingly had little difficulty replacing directors at huge state-owned companies. He was even able to pull Tito Mboweni out of the hat when faced with the sudden, potentially devastating resignation of finance minister Nhlanhla Nene. Some consultation would have been expected on the NDPP appointment, but a formally constituted panel?

The answer must be that the undermining of presidential legitimacy in the Zuma years is so extensive that Ramaphosa lacks confidence. He must feel he needs to protect himself from accusations within the ANC — for that is where he is most vulnerable — that in appointing a prosecutions boss he would be pursuing his own agenda.

What is this agenda? He has said what it is, and we must assume it is guiding all his appointments: to root out corruption, and to seek criminal prosecution and punishment for those who deserve it. He may be afraid to appoint unilaterally a person who, by character and record and qualifications and reputation, will have the ability and the will to drive precisely that, without fear or favour. When the wheels of justice at last begin to turn on state capture, it will almost certainly mean arresting and charging some senior members of the ANC and perhaps the cabinet, and others who have grown accustomed to being close to power.

In a sense, much of the work of the NDPP has already been done. He or she will just have to press the buttons. Talk about low-hanging fruit. We have had the public protector’s damning report into state capture, the Nugent inquiry into the sabotage of the SA Revenue Service and the Zondo commission on state capture. Each of these has produced prima facie evidence for prosecutions. And there is more to come.

Ramaphosa knows this. He wants to, and knows he must, appoint an NDPP who is highly competent and courageous, and will act swiftly — but he wants somehow not to be personally associated with the consequences.

Normally one would expect the president to look to the ranks of state prosecutors and choose from the most senior, respected, qualified and experienced among them. But the criminal justice system was not normal under apartheid, and whatever state of normality it reached in the first 15 years of democracy has now receded, after a decade of increasing capture. It is not clear how much senior and untainted prosecutorial talent remains available to the state.

Should the panel look for a person who is already a public figure and a household name, whom lawyers will respect and the public can trust? If so, this would be the equivalent of the appointment of Mboweni as finance minister. He was arguably the only available heavy-hitter the markets would be prepared to accept as being on the level of ex-ministers Trevor Manuel, Pravin Gordhan and (until recently) Nene. Ramaphosa would love to appoint such a person as NDPP.

Or should the panel look for a relatively faceless senior public servant, whose legal credentials are impeccable, but who will need to build legitimacy with the prosecutors, the legal profession and the public? Such a person would have an uphill battle. Another route would be to look for someone who has left the service, but whose recall would instil new energy and boost morale.

Whoever is recommended to Ramaphosa, the president will still have to solely own the appointment. The fact that he needs to pretend he will not is more revealing than he may realise.

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