LAWSON NAIDOO | NDPP appointment finds a silver lining for a cloudy mess

A botched process can sometimes lead to a good outcome. This is a lesson that can be drawn from the appointment of Andy Mothibi as national director of public prosecutions (NDPP). Mothibi will assume office on February 1, succeeding Shamila Batohi, the only NDPP to serve out her full term — though she is retiring three years short of her non-renewable 10-year term limit.

In October last year President Cyril Ramaphosa established an advisory panel to assist him in identifying the next NDPP, just as he had done in 2018 before Batohi’s appointment. The make-up of the panel was different this time, with concerns that members lacked legal and prosecutorial expertise or an understanding of how the National Prosecuting Authority (NPA) works. These weaknesses became glaringly obvious during the interviews of the six candidates last month, when the duration of the interviews was deemed sufficient to satisfy the robustness criterion — quantity trumping quality. There were other striking weaknesses in the approach of the panel; neither the terms of reference nor the names of the 26 applicants who were deemed not fit and proper were published.

After the interviews the panel reported to Ramaphosa that none of the six candidates was suitable. However, this was only revealed in the media statement from the Presidency last week when Ramaphosa announced Mothibi’s appointment. While the panel has probably redeemed itself with this call, as all the candidates revealed concerning shortcomings, this should not mask its deficiencies.

Ramaphosa then exercised his authority under the constitution to appoint Mothibi. We do not know who prevailed upon Mothibi to make himself available, or whether Ramaphosa interviewed Mothibi himself. While the appointment of Mothibi is legally secure, it does undermine Ramaphosa’s commitment to an open and competitive process.

Why was Mothibi not subjected to a public interview by the panel, the purpose of which is to build public trust and confidence in the person to be appointed? Ramaphosa appears to blame this on the “lack of time”, as Batohi’s retirement is imminent. But it is the president’s own fault that the process was rushed. Why was the panel only appointed in October, when there were calls for the process to be initiated many months earlier?

But it is the president’s own fault that the process was rushed. Why was the panel only appointed in October, when there were calls for the process to be initiated many months earlier?

Despite all these procedural weaknesses and inconsistencies, Mothibi’s appointment must be welcomed. He clearly and amply possesses the range of attributes required. He began his career as a prosecutor and then held various governance roles in both the public and private sectors. He has been at the helm of the Special Investigating Unit (SIU) for almost 10 years, fashioning it into a credible, coherent and effective institution in the fight against corruption and maladministration. These factors prompted the National Anti-Corruption Advisory Council, whose report still sits in Ramaphosa’s inbox, to recommend that a new office for public integrity be established with the SIU at its core.

Mothibi’s integrity is unquestioned; he is fiercely independent and he leads with purpose and conviction. But all these qualities will amount to little if he is not provided with the full suite of powers to run the NPA efficiently. A major constraint remains the overarching authority of the department of justice over its key operational and financial affairs, alongside the inability of the NDPP to take any disciplinary action against senior NPA staff without presidential authority. These institutional weaknesses that hamper the functioning of the NPA have been flagged for a long time, and despite executive support for the idea, amendments to the NPA Act are yet to emerge. This must now be a priority for the president and his minister of justice.

Mothibi will begin his tenure with an emaciated leadership team — one deputy NDPP position is vacant while two are filled in acting capacities. These positions must not only be filled urgently but with strategic foresight to create a sustainable succession plan for the NPA. This is especially so as Mothibi has only about 30 months to go before reaching the compulsory retirement age of 65. We have seen this movie before — Ramaphosa appointed Raymond Zondo as chief justice when just over two years of his term at the Constitutional Court remained. In that instance it was clear that Maya would be his successor. There is no such plan now.

Mothibi will benefit from a handover, something that none of his predecessors enjoyed, though it will not be as structured and timely as it could have been. Batohi has prepared a detailed handover report that she will share with him, Ramaphosa and the minister of justice. She says it “not only documents progress, including on a number of strategic initiatives, but also identifies key risks, opportunities and unfinished work in the process of continued rebuilding and reform”.

While it has become fashionable again to berate the NPA, largely on the basis of unsubstantiated allegations, Mothibi inherits an organisation that is a work-in-progress rather than one in tatters. He must be provided with all the support he needs to complete that WIP.

• Naidoo is the executive secretary of the Council for the Advancement of the South African Constitution