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How to avoid bad appointments in South Africa's criminal justice system
10 September 2013

Recently, the National Commissioner of the South African Police Service (SAPS), Riah Phiyega, held a media conference to reflect on her first year in office. What should have been an opportunity to focus attention on her plans for the police was however overshadowed by revelations that Major General Bethuel Mondli Zuma, whom she announced as the new Provincial Commissioner of Gauteng, has criminal charges pending against him. A few hours later she had to endure the embarrassing experience of publicly retracting her decision. As a result, few people remembered her plans for improving the police – instead, some are calling for her dismissal.

This debacle is surely proof enough that there is an urgent need to rethink how appointments to leadership positions in South Africa’s criminal justice organisations are made. In fact, the National Development Plan demands that police appointments be made following a transparent and competitive process. Perhaps if Phiyega had followed these recommendations, South Africans would be focusing on the positive parts of her media briefing. However, it is not only in the police that such an approach to appointments is urgently required.

The day before the SAPS appointment fiasco, President Jacob Zuma announced that, with effect from 1 October, Mxolisi Nxasana and Advocate Vasantrai Soni would head the National Prosecuting Authority (NPA) and the Special Investigating Unit (SIU) respectively. The announcement received a cautious welcome, considering the fact that these institutions haven’t had permanent leadership for a considerable period. However, given that little is known about the two men, the question is whether either of these appointments will also end up a disaster. The last thing the NPA needs is for this appointment to go the same way as with disgraced former National Director of Public Prosecutions (NDPP) Advocate Menzi Simelane, who had to leave after the Supreme Court of Appeal found his appointment irrational. This was as a result of clear evidence that he was dishonest and unsuitable.

Doubts are already being expressed about both candidates. Questions have been raised about whether an attorney from KwaZulu-Natal, who has no prosecutorial experience and has never worked in a state institution, has the mettle to run the NPA. Some have suggested that Nxasana cannot possibly be independent – if he were, the argument goes, Zuma would not have appointed him. This, they say, is because the President would never appoint anyone who would actually pursue the 783 corruption charges he may still have to face.

Similarly, Soni may have to investigate and recover a substantial part of the R206 million that has been spent on upgrading Zuma’s private residence. South Africa’s Minister of Public Works has suggested that there was some level of corruption involving the contractors. Would Zuma appoint Soni if there were any chance of his reversing the development of his private residence in Nkandla? Unfortunately, there are already substantial national and international suspicions about each appointment, before either man has even taken office.

Of course, it doesn’t have to be this way. If a transparent and competitive process had been followed in making these appointments, any doubts could have been addressed before either man stepped into his post. An open process of interviewing and selecting the best possible candidates would ensure that the public could be reassured that those appointed had the necessary skills, experience, integrity and independence required to head these key institutions. Such a transparent process would have immense benefits for both the newly appointed leaders and their institutions.

First, they would have the public’s support as they took up their new posts, which would in turn restore public trust in these embattled institutions. Second, the men and women who work in each institution would have confidence in the calibre of their new leaders and rally around them. Currently, the doubt and suspicion will take time to overcome, given the poor leadership that has beleaguered the NPA and SIU over the past two years.

Indeed, there is a precedent in South Africa for transparent and competitive appointments to key state institutions: this is how the Public Protector is appointed. Looking further afield, Kenya provides an innovative example. Following the adoption of the new constitution, the various candidates who were nominated for the posts of Chief of Police and Attorney-General (Kenya’s equivalent of South Africa’s NDPP), were interviewed live on television. This meant that all Kenyans could follow how each candidate performed in their interview. By the time the new heads were appointed, the public had confidence in their skills and abilities.

South Africa’s criminal justice agencies such as the SAPS, NPA and SIU are well resourced and have many honest, dedicated and skilled people working for them. This means they could have a much greater impact in the fight against crime and corruption than they have had in recent years. However, the fundamental challenge that each of these agencies faces is that of poor leadership. This has led to internal wrangling, poor policy decisions and a decline in staff morale, resulting in deteriorating performances and declining public trust.

If South Africa’s political leadership continues to ignore the vital importance of public transparency, rigorous vetting and competitive recruitment when making leadership appointments in its criminal justice institutions, these entities will continue to lurch from crisis to crisis. This can only have disastrous consequences for the rule of law, the fight against crime and corruption, and the state’s ability to ensure the safety of its citizens.

This article was published in the New Age newspaper on 6 September 2013.

Hamadziripi Tamukamoyo, Researcher, and Gareth Newham, Head, Governance, Crime and Justice Division, ISS Pretoria

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