Nichola de Havilland
The decision to drop 18 charges against Jacob Zuma will be widely regarded as the most serious blow to the rule of law since the dawn of our new constitutional democracy.
The rule of law is entrenched in the founding values of our Constitution. In its most basic form it means that no one is above the law and that all laws have to be in accordance with the Constitution.
The full import of the NPA's decision must be understood in the light of its constitutional powers and role and specifically the powers of its head, the national director of public prosecutions (NDPP).
Section 179 of the Constitution vests the NPA with the power to institute criminal proceedings on behalf of the state. The NPA thus bears the sole responsibility for determining who will, and who will not, be prosecuted.
Section 179 requires the NPA to carry out this function "without fear, favour or prejudice". Its strict prosecutorial independence is also guaranteed by the National Prosecuting Authority Act (NPAA), which also prohibits improper interference by any organ of state or member of an organ of state.
The NDPP is specifically empowered to review a decision to prosecute or not to prosecute. In exercising this prosecutorial discretion, the NDPP is bound by the NPA Act, which requires observation of the UN guidelines on the role of prosecutors, which mandate that prosecutors shall:
". Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim and pay attention to all relevant circumstances .".
Strict independence in the making of individual prosecutorial decisions is thus protected both constitutionally and legislatively and underpins our criminal justice system.
The independence of the judiciary is also dependent on the independence of the legal profession and the unfettered and fearless exercise of the powers of prosecution by the NPA.
It is against this background that the NPA's decision must be considered.
At the outset, it must be stressed that Advocate Mokotedi Mpshe did not withdraw the charges because of any flaw in the evidence that the NPA had accumulated against Mr Zuma.
In a sworn statement in the appeal against the Harms judgment, the NPA stated that the evidence which it had accumulated provided "a firm basis for the institution of a prosecution". In other words, it had sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution.
Advocate Mpshe was also at pains to state that the professionalism of the prosecutorial team was not in question and that the substantive merits of the case were not affected.
In effect, the sole reason for dropping the charges appears to be the tape-recording evidence that Mpshe presented.
This evidence related to the manipulation of the prosecutorial process by the former director of special operations (DSO) in so far as the timing of the charging of Zuma was concerned.
Mpshe also stated very clearly that the prosecutorial team had wished to continue with the prosecution and had proposed that the whole question should be decided by a court. However, in Mpshe's view, the manipulation of the timing involved the management of the process and as the former director of the DSO had used the process for purposes outside the prosecution itself, the case against Zuma had itself been fundamentally tainted. It was thus unconscionable to continue with the charges.
The criteria relating to a decision to prosecute are governed by prosecutorial guidelines which require, inter alia, that the sole test to be applied is "whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution".
However, the accused's right to a fair trial is also constitutionally guaranteed.
If the prosecutorial process undermines this right, it would be equally unconstitutional to continue with the prosecution. The question that must be considered in this case is whether considerations relating to the timing of the charging a person are sufficiently integral to the decision to prosecute as to taint the whole process and deprive the accused of the right to a fair trial?
Clearly a decision to prosecute is not absolute, and the review of a case should be a continuing process. To this end, the guidelines provide that changing circumstances and fresh facts should be taken into account.
Mpshe was thus quite correct to revisit the decision to prosecute Zuma in light of the new evidence.
In evaluating such new evidence an essential factor is the admissibility of the evidence, which is largely determined by the manner in which it was obtained and its reliability. Mpshe satisfied himself on both these requirements. However, an additional requirement is that the political interference would have to have been over the decision of the current acting NDPP, Mpshe.
This is so since he, and he alone, was legally obliged to review any earlier decision to prosecute. Moreover, even if it is shown that there was some political interference, as noted by the Supreme Court of Appeal in overturning the Pietermaritzburg high court's 2008 verdict on Zuma's prosecution, "a prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent".
It would seem to the Centre for Constitutional Rights that Mpshe has erred in his decision to drop charges against Zuma, for the following reasons:
l The NPA has stated on affidavit that it has "a firm basis for the institution of a prosecution";
l The timing and motives of the decision of the former director of the DSO to charge Zuma would not now affect Zuma's right to a fair trial; and
l The clear ruling of the Supreme Court of Appeal quoted above.
Mpshe's decision cannot be seen in isolation. It follows the decision to abolish the NPA's Directorate of Special Operations (the Scorpions) last year; President Motlanthe's questionable dismissal of the previous national director of public prosecutions, Vusi Pikoli, and the transparently engineered early release from prison of Schabir Shaik because of some supposed terminal medical condition.
The cumulative effect of these developments has been to raise serious questions regarding the NPA's present and future independence and whether all South Africans are still treated equally before the law.
It is now up to civil society to take the decision on constitutional review. Alternatively, any individual who is adversely affected may proceed with a private prosecution. Civil society should also call, once again, for the appointment of a judicial commission of inquiry into the arms deal, which lies at the root of so many of the current threats to our constitutional system.
l Advocate de Havilland is a director at the Centre for Constitutional Rights