Umm Muhammed Umar

The independence of the National Prosecuting Authority will be under extensive scrutiny as it moves ahead to charge politicians linked to state capture. The NPA has increasingly been accused of bias. Radio Islam spoke to

Hoffman said that there was a huge disjunct between the reality of ANC politics, and South Africa’s constitutional dispensation, where the separation of powers, was the order of the day. He said, “ So if you do not regard the executive branch which runs the country, the legislative branch, which makes the laws according to which the country is run, and the judicial branch, which deals with disputes that arise between citizens or between citizen and state, you’re going to get into a situation where those independent institutions that are meant to be looking after our constitutional democracy, and the proper implementation of the rule of law, get swallowed into the big black hole that is cadre deployment, and the comprehensive control that the ANC tries to exercise.” He added that that was the essence of the problem.

South Africa has a properly guaranteed independence for the judiciary, which is enjoined to be impartial and to work without prejudice, completely independently of the other branches of government. There is a similar status for the Chapter Nine Institutions, which exist in order to anchor constitutional democracy in our society. Hoffman said, “The NPA falls in between, or sort of isn’t part of the executive, and isn’t as independent as a Chapter Nine Institution, or the judiciary, which is a Chapter Eight Institution.” He explained, “The Constitution does say that legislation must be passed. That renders it in the bag capable of operating without fear or favour, or prejudice, which means independently; but it also says that the Minister of Justice has final responsibility over the NPA.” He said that the way things have turned out is that the accounting officer of the NPA is the Director General of Justice, and the accounting officer of the police is the Commissioner of Police, resulting in the idea that the Department of Justice was entertaining the notion of exercising control over the NPA, whereas the NPA wishes to operate independently. Hoffman used the example of the Scorpions having been prepared to go after Jacob Zuma on charges of corruption, while the executive branch of government did not want that to happen. He said, “And it didn’t, because of the of the attitude that was evinced in the executive set.” Hoffman stressed that South Africa needed constitutional amendments that ensured a more independent NPA than currently exists.

Hoffman postulated that if South Africa was going to create an anti-corruption body that worked properly, then a separate Chapter Nine Institution be created for that. He added that even so, the country would still need an independent NPA to do “all the other work”. Further, he expressed disappointment in Shamila Batohi’s leadership of the NPA. He said, “all that she does is make excuses for not doing her job as she should. She does think independence, but all of the leaders of the NPA have sought independence and I’m afraid that has never come to pass.” Hoffman explained that that was because there’s never been the political will to let the NPA operate freely, as an Independent Chapter Nine Institution should.