The justice minister, Ronald Lamola, has ordered an official inquiry into the National Prosecuting Authority’s (NPA’s) handling of the “Nulane” State Capture case.
His spokesperson, Chrispin Phiri, announced on 11 May 2023 that Lamola “has directed a Section 33 inquiry to the NPA”, in the light of the minister’s “concerns and very strong criticism directed at the NPA in the Nulane case”.
The NPA Act, following through on the wording of section 179 (5) of the Constitution, allows the Minister of Justice to “exercise his or her final responsibility over the prosecuting authority” in cases dealt with by it, and this includes the power to ask to be furnished with a report. The fact that this has been pursued after the scathing “Nulane” judgment is an indication of the consternation surrounding the state’s handling of the case.
The appropriate answer at this stage to the minister’s inquiry is that the matter is being taken on appeal and is not yet finally determined. The fact that the matter was allocated to a junior acting judge has been criticised, [ as has the language used by her in the judgment. ] All acting judges are vulnerable to criticism of their independence (they may, after all, want to be appointed permanently someday) and it is accordingly inappropriate to have them adjudicate politically sensitive cases. The cheering in Dubai, Nkandla, India and Vanuatu after the discharge of the accused was announced is indicative of the matter being highly charged from a political perspective. It has made the acting judge extremely popular in certain circles.
As the case has not been finally dealt with at this stage, it is arguable that the minister’s reliance on his powers under section 33 of the NPA Act is premature. The correct moment to trigger the inquiry is when the matter has been dealt with finally by the courts, which is not the case yet. Indeed, the appeal processes could take some time to complete.
Prematurity aside, the minister is barking up the wrong tree by calling for an explanation from those with their shoulders to the wheels of justice. It is the design of the criminal justice administration that is at fault for the general malaise in our criminal justice administration and, in particular, for getting to grips with serious corruption cases and other heavy lifting required of the NPA and the Hawks.