Without rule of law, constitutional democracy is ‘dead in the water’

Staff Writer | Apr 26, 2019
Former Constitutional Court Justice Yvonne Mokgoro’s damning report on the conduct of senior National Prosecuting Authority (NPA) officials delivers strong warning on rule of law.

Whatever the fate of Deputy National Director of Public Prosecutions Nomgcobo Jiba and Special Director Lawrence Mrwebi – both of whom Justice Mokgoro recommended be removed from office – the retired judge’s report leaves no doubt about the risks of allowing the rule of law to slide. 

The independence, as much as the perception of the independence, of the NPA is critical, Justice Mokgoro writes. 

In the closing passage of her 140-page report, she observes of the many “allegations of malfeasance and political interference” against the NPA over the years: “This is particularly troubling, given the critical role that the NPA plays in ensuring that the rule of law, the very foundation of our constitutional democracy, is both respected and safeguarded.”

Mokgoro continues: “In the face of South Africa's painful history and its continuing struggle with inequality, it is the rule of law that holds every individual to the same standard and, in so doing, recognises the inherent dignity within every individual. Whether one wields power or is of the most vulnerable, the rule of law guarantees equal treatment. Without it, the vision of a constitutional democracy is dead in the water. Appreciating that the NPA plays a critical role in upholding the rule of law, it is crucial that it is seen to be free from all external pressures which might threaten prosecutorial independence.”

The NPA, Mokgoro argues, “must execute its mandate diligently and without fear, favour or prejudice. It must be independent and be seen to be independent. It has been stated before, but bears repeating here: ‘“the appearance or perception of independence plays an important role” in evaluating whether independence in fact exists... This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.’

“Where officials are mired in controversy and are consistently being taken on review for irrational decision-making, and being found wanting by the Courts, it damages the public confidence. The NPA must instil a strong sense of constitutional values and belief in the rule of law. When these values are internalised and fought for vociferously from within the NPA, only then will the institution enjoy the confidence of the citizenry and become the prosecuting authority that South Africans deserve.”

In February 2018, IRR chief executive Frans Cronje noted of the newly installed administration of Cyril Ramaphosa that the chances of effective reform capable of improving the country’s socio-economic fortunes hinged not only on economic policy reform, but the restoration of the rule of law. 

Cronje said: “The signs are promising, but the test will be if these early actions translate into a raft of successful prosecutions, an important catharsis and a sign that the paradigm has indeed shifted.”

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