The Fight for Competent Criminal Justice in South Africa Continues

610x350
By Sarah Logan

Recent weeks have seen South Africa’s crime intelligence boss, Lieutenant General Richard Mdluli, suspended, reinstated, and suspended for a career third time by the Acting National Police Commissioner, Major General Nhlanhla Mkhwanazi, pending an ongoing court inquiry into the 1999 murder of Mdluli’s former lover’s husband, Oupa Ramogibe.

Mdluli was initially suspended from his position following his appearance in Boksburg Magistrates Court in February 2011 on charges relating to Ramogibe’s murder. He was later arrested again in September 2011, this time on charges of fraud and corruption for having allegedly taken money from the crime intelligence fund for personal use. Additionally, Mdluli is facing internal disciplinary action for attempting to solicit a kickback through the purchase of luxury motor vehicles.

Despite facing such charges, as well as further allegations, including unlawful eavesdropping, Mdluli’s first suspension was lifted in March 2012 by the Minister of Police, Nathi Mthethwa, who cited having received instructions from “beyond him” to reinstate Mdluli. This move, unsurprisingly, led to reports that Mdluli was being protected from prosecution by President Jacob Zuma. It is well known that Mdluli is a loyal ally of Zuma, and has reportedly vowed to help Zuma secure a second term as President of the ruling African National Congress (ANC) at the party’s Mangaung conference this December.

Upon reinstatement, Mdluli was transferred to the office of the Deputy National Commissioner for Police, where he was granted even wider powers to spy on phone calls, text messages and emails than he had previously. This led to a huge public outcry against not only Mdluli, but also the Police Minister and President Zuma for reinstating him. Indeed, surveys revealed that Zuma’s approval ratings dropped by almost 10 per cent in the wake of Mdluli’s reinstatement, showing that many South Africans attributed Mdluli’s reinstatement to presidential protection.

In defiance of the lifting of the suspension, the Police Commissioner responded by suspending him once more, undoubtedly causing a rift between his temporary police leadership and the national executive leadership of Minister Mthethwa, and President Zuma in particular.

Apart from re-suspending Mdluli, Acting Commissioner Mkhwanazi has made other laudable changes to the police force since being appointed. These include replacing all 12 staff members who previously had access to the crime intelligence fund, estimated at some R300 million, pending an inquiry into high-ranking officers (including Mdluli) using the fund for their private interests. Instead, only one official is now authorised to approve any claim from the fund, ensuring that a much closer watch is kept on such monies. It is also thought that many senior managers within crime intelligence will be charged internally and criminally for various acts of misconduct.

Unfortunately, as much as Mkhwanazi’s courageous moves are to be celebrated, it is likely that they will guarantee that his leadership over the South African police force is short-lived. Sadly, the last decade under ANC rule has increasingly shown the executive’s preference for incompetent or controversial criminal justice bosses who are loyal to the ANC over effective leaders who fail to toe the party line. This has led to an increasingly inept and politicised police force. Mkhwanazi’s clean-up campaign within the police force has already ruffled many feathers, and is likely to ruffle more should he remain in office.

As a case in point for the ANC’s preferences for incompetent/corrupt criminal justice bosses, Mkhwanazi is currently Acting National Police Commissioner because the National Police Commissioner, Bheki Cele, is presently suspended from duty due to allegations of corruption and maladministration. Zuma suspended Cele after having been directed to take action against him by the Public Protector, although Zuma did so well outside the stipulated time period, thereby creating the impression that the executive was dragging their heels. Cele, in turn, replaced Jackie Selebi, who, whilst both National Police Commissioner and head of Interpol, was charged with corruption. He was later convicted and sentenced to 15 years in prison.

The National Prosecuting Authority (NPA) has an equally chequered history of directors. Those who have not been found unfit to hold office have instead been forced out for pursuing corruption charges against either Zuma or Selebi in defiance of political pressure to shield them. The appointment of the current director of the NPA, Advocate Menzi Simelane, has recently been declared to be “inconsistent with the Constitution and invalid” by South Africa’s Supreme Court of Appeal (SCA). He is presently on leave pending the confirmation of the SCA’s ruling by the Constitutional Court. This judgment stems from the fact that, prior to his appointment as director of the NPA, Simelane had been found to be unfit to hold such an office after providing “misleading and untruthful evidence” to a legal inquiry. For the same reason, he is facing investigation by South Africa’s General Council of the Bar, which is tasked with investigating allegations of misconduct on the part of advocates.

Although it is admirable that action has eventually been taken against most, if not all, questionable criminal justice bosses, either by the courts or the executive, it is highly worrying that such individuals are repeatedly appointed by the ANC government to key positions in the first place. Furthermore, with the growing intolerance of the ANC government towards competent persons who refuse to bend to political pressure, combined with their increasing hostility towards the independent judiciary and, arguably, the Public Protector, it is not certain whether the removal of key individuals guilty of dishonourable conduct will continue for much longer. Needless to say, it is undeniably the South African public who will suffer the most from mounting impunity within their corrupt government.

 

Sarah Logan is currently practising as an attorney in Johannesburg, predominantly in commercial law, although her interests and true passion lie in working towards the attainment of democracy and good governance in Africa, and the achievement of the social and economic betterment of all of Africa’s people.

 

5 June 2012