Opposition parties have welcomed the inquiry into National Director of Public Prosecutions Mxolisi Nxasana’s fitness to hold office, while calling for a change in the appointment process of the country’s top prosecutor.
But whether Nxasana will be suspended pending an inquiry into his fitness to hold office should emerge in the probe’s terms of reference, expected soon.
Presidential spokesman Mac Maharaj said on Sunday that the inquiry’s terms of reference would set out the grounds for the inquiry, whether the NDPP would be suspended or not and its time frames.
However, he did not give a deadline by which these terms of reference would be proclaimed.
On Sunday, the NPA referred all enquiries, including whether Nxasana was expected in the office on Monday, to the Presidency.
On Saturday, President Jacob Zuma, “after careful consideration of all matters before him”, decided to institute an inquiry into Nxasana’s fitness to hold office.
Maharaj said this was in terms of section 12 (6) (a) (iv) of the National Prosecuting Authority Act 32 of 1998, and the details of the establishment of the inquiry would be “communicated to the public in due course”.
Nxasana, who briefed Parliament just two days before Zuma’s announcement, has been under fire for what some believe are political reasons. This followed reports that he did not have the required security clearance for a man in his position. He was accused of not disclosing a 1980s murder of which he was acquitted.
The ANC declined to comment on the latest developments, but opposition parties say the decision was “long overdue” and an “admission” that Nxasana’s appointment was not procedural.
ANC spokesman Zizi Kodwa said “we are not commenting on that”.
DA parliamentary leader Mmusi Maimane said the DA welcomed “the long overdue investigation”.
“The announcement by President Jacob Zuma is an admission that due process was not followed when appointing the head of the National Prosecuting Authority (NPA). The inquiry into Mr Nxasana should have happened before he was appointed, not after, given the nature of the job,” said Maimane.
The DA had on various occasions called for Zuma and Parliament to investigate the suitability of Nxasana to lead the NPA, “an institution which has for many years been plagued by political meddling and controversy”, Maimane said.
ACDP MP Steve Swart said the inquiry was further evidence of why the appointment of the NDPP needed to change. Currently the NDPP is appointed by the president.
“Again it raises the question about the appointment process. Surely Parliament should have a role to play. One needs to look into a new appointment process such as the one for judges where you have the Judicial Service Commission, where there’s a grouping that suggests names so it is not only in the domain of the president to appoint,” said Swart.
Economic Freedom Fighters spokesman Mbuyiseni Ndlozi said the party was watching the process “very closely”. The appointment process should also be looked at.
“We think the president must take out the details so that we give a comprehensive response, not only critique which considers that people who have been questionable have been knowingly put in that position on the part of successive presidents of ANC and what should happen on the part of Parliament and also politically.”
Council for the Advancement of the SA Constitution (Casac) executive secretary Lawson Naidoo said the terms of reference were crucial to the inquiry.
“We need to look at the terms of reference (to discover) how long it will take, how complex it will be,” he said. Any inquiry should be held in public given the precedent set by the 2008 Ginwala inquiry into then suspended National Prosecuting Authority (NPA) head Vusi Pikoli.
Casac recently called on the NPA to become a fully independent institution under chapter nine of the constitution, which establishes entities to support democracy like the auditor-general, public protector and SA Human Rights Commission.
Yesterday the Sunday Independent reported the inquiry had come just as Nxasana had been poised to recharge suspended crime intelligence boss Richard Mdluli.
In late 2011 fraud, corruption and other charges against Mdluli were withdrawn, but last year the North Gauteng High Court ordered that the charges be brought again - and in June the NPA said it would reinstate at least some charges.