Statement: All eyes on the National Prosecuting Authority
29 April 2016
The Centre for Constitutional Rights (CFCR) welcomes the judgment handed down by the Pretoria High Court (the High Court) in Democratic Alliance v Acting NDPP and Others. A full bench of the High Court has reached a judgment that a decision taken in 2009‚ by the then Acting National Director of Public Prosecutions, Mokotedi Mpshe, to drop 783 charges against the President, Mr Zuma, was irrational and should be reviewed and set aside. The charges relate to the Arms Deal, in which his financial adviser, Mr Schabir Shaik, was found guilty of corruption and was sentenced to 15 years’ imprisonment.
The judgment is an affirmation of three key principles.
Firstly - in line with the notion of equality as enshrined in the Constitution - no one, regardless of rank, should be above the law. That the President may very well stand trial for corruption charges is hardly ideal for any nation - but that is the precise value of equality before the law - no one should be above the law.
Secondly, the decision underpins the principle of legality as a mechanism to ensure that the state, its organs and its officials do not consider themselves to be above the law in the exercise of their functions but remain subject to it. Despite the fact that the National Prosecuting Authority (NPA) is an organisation whose independence is a core institutional value - its decisions must still be underpinned by legality and rationality. There should always be a rational link between the means employed to achieve a particular purpose on the one hand and the purpose itself. Any exercise of public power should always be underpinned by principles of legality. This means that in the face of overwhelming evidence suggesting wrongdoing, the NPA will be hard-pressed to find reasons not to lay charges.