We need a way out of this impasse

Dear Corruption Watch,

I’ve read that an NGO has taken the President to the Constitutional Court to force him to appoint a permanent National Director of Public Prosecutions (NDPP).  Why would they want him to be the one to make the appointment since President Zuma has a personal interest in the matter? Since the DA has challenged the decision to drop corruption charges against him, whomever the President appoints may have to decide whether to re-institute those charges. Doesn’t the Constitution require the Deputy President to appoint an NDPP when the President has a conflict of interest like this?

Yours truly,

Independence First

Dear Independence First,

James Madison, one of the drafters of the American Constitution, once wrote: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Madison’s key insight was that we need structural measures in place to ensure that government officials don’t use their power to further their own interests, rather than the public interest.

Under s 179(1) of the Constitution, the President has to appoint the NDPP. There is a strong argument to be made that President Zuma is too conflicted to appoint an NDPP. As you rightly note, he has a personal incentive to pick someone who will not decide to charge him with corruption. It would definitely be better if the President didn’t get to choose the person who has to decide whether to try to send him to jai

In the US, after the Watergate scandal Congress passed a law permitting an “independent counsel” to be appointed to investigate and prosecute the President and other high-ranking executive officials. Ken Starr, who tried to prosecute Bill Clinton during the 90s, was appointed under this law.  That is one way to address the problem.

Unfortunately, our Constitution doesn’t make provision for independent counsel, nor have a mechanism to force the President to get somebody else to appoint the NDPP.  Section 90 of the Constitution makes provision for an “Acting President” – normally the Deputy President – to perform the duties of the President. Some commentators have suggested this could be relied on to say that the President can’t appoint the NDPP. The problem is that Section 90 only applies when the President is “absent from the Republic or otherwise unable to fulfil the duties of President”.  Although President Zuma is conflicted, he is still able to do the job of being President. Section 90 only seems to apply when a president can’t do any of the tasks the Constitution requires him to perform, not when there is one particular task he is conflicted about.

However, we shouldn’t worry about that too much – there are still sufficient constitutional safeguards to ensure that whoever the President decides to appoint is sufficiently independent. 

First, the NDPP serves a non-renewable 10-year term and can only be removed if both Parliament and the President agree he is not fit for the office.  Once he or she is appointed, an NDPP is no longer beholden to the President. 

Second, the NDPP has to be a “fit and proper person”. If the President selects someone with questionable integrity, anybody can take him to court and have the appointment declared invalid – just ask Menzi Simelane.

But surely the first step must be to appoint someone as the NDPP.  Only once the President picks someone, can we start arguing about whether they are independent. That is what the challenge by CASAC – the Council for the Advancement of the South African Constitution – (the NGO you read about) is designed to achieve.