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State Capture and the Political Manipulation of Criminal Justice Agencies a Joint Submission to the Judicial Commission of Inquiry Into Allegations of State Capture

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State Capture and the Political Manipulation of Criminal Justice Agencies a Joint Submission to the Judicial Commission of Inquiry Into Allegations of State Capture State capture and the political manipulation of criminal justice agencies A joint submission to the Judicial Commission of Inquiry into Allegations of State Capture CORRUPTION WATCH AND THE INSTITUTE FOR SECURITY STUDIES APRIL 2019 State capture and the political manipulation of criminal justice agencies A joint submission by Corruption Watch and the Institute for Security Studies to the Judicial Commission of Inquiry into Allegations of State Capture April 2019 Contents Executive summary ..........................................................................................................................................3 Introduction ...................................................................................................................................................3 Structure and purpose of this submission .....................................................................................................3 Impact of manipulation of criminal justice agencies .......................................................................................4 Recent positive developments .......................................................................................................................4 Recommendations ........................................................................................................................................4 Fixing the legacy of the manipulation of criminal justice agencies..............................................................4 Addressing risk factors for future manipulation of criminal justice agencies ...............................................5 Conclusion ....................................................................................................................................................6 Section A: Introduction ....................................................................................................................................7 Corruption Watch ..........................................................................................................................................7 The Institute for Security Studies ...................................................................................................................7 Joint submission ...........................................................................................................................................7 Section B: Focus of this submission – manipulation of criminal justice agencies ......................................8 Relationship between manipulation of criminal justice agencies and state capture ........................................9 Continuities from the Mbeki era ................................................................................................................... 11 Section C: Criminal justice agencies and the investigation of corruption ................................................. 14 Criminal justice agencies ............................................................................................................................. 14 The investigation of corruption ..................................................................................................................... 15 Section D: The constitutional and legal framework pertaining to the independence of criminal justice agencies ............................................................................................................................... 16 Section E: Appointment and removal from office of senior leadership ...................................................... 18 Constitutional and legal provisions regarding senior leadership appointments ............................................. 18 Appointment of individuals who are manifestly not suited for senior leadership ...........................................20 Acting appointments – the role played by Nomgcobo Jiba as acting NDPP and after ................................. 21 Unlawful withdrawal of corruption charges against Richard Mdluli ..........................................................22 The charging of Johan Booysen .............................................................................................................23 Allegations of Angelo Agrizzi at the State Capture Commission .............................................................. 24 Replacement of the KZN Acting Director of Public Prosecutions ............................................................26 The spy tapes case ................................................................................................................................ 27 General remarks regarding appointment of Jiba as acting NDPP ............................................................ 27 Reasons for the removal of Mxolisi Nxasana ........................................................................................... 27 CORRUPTION WATCH AND THE INSTITUTE FOR SECURITY STUDIES | APRIL 2019 1 Role of Jiba and litigation against her during Shaun Abrahams’s term of office .......................................29 Acting appointments in the ICD and IPID .....................................................................................................30 Irregular appointment processes – Richard Mdluli .......................................................................................30 Other irregular appointments ..................................................................................................................35 Removal from office of senior leadership .....................................................................................................35 Using the media – ‘leaks’ to journalists ........................................................................................................ 37 Security of tenure in practice .......................................................................................................................39 Broad picture emerging from processes of appointment and removal and associated litigation and court judgments in respect of the leadership and independence of key criminal justice agencies ............... 41 Abuse of executive power ....................................................................................................................... 41 Abuse of office by favoured individuals ...................................................................................................44 Concerns regarding appointments and promotions made during the term of office of Berning Ntlemeza as head of the Hawks ................................................................................................45 Section F: Other processes of manipulation of criminal justice agencies .................................................46 Section G: The impact of manipulation of criminal justice agencies..........................................................49 Section H: Recent positive developments ...................................................................................................52 Section I: Recommendations ........................................................................................................................53 The legacy of the manipulation of criminal justice agencies .........................................................................53 Addressing risk factors for future manipulation of criminal justice agencies .................................................54 Section J: Conclusion ....................................................................................................................................57 Notes ...............................................................................................................................................................58 2 STATE CAPTURE AND THE POLITICAL MANIPULATION OF CRIMINAL JUSTICE AGENCIES Executive summary Introduction This joint submission from Corruption Watch and the Institute for Security Studies, two South African civil society organisations, is concerned with the manipulation of criminal justice agencies by the Executive under the administration of former president Jacob Zuma. This manipulation was a critical factor in entrenching state capture. The criminal justice agencies that are focused on are the South African Police Service (SAPS), particularly its crime intelligence division; the Directorate for Priority Crime Investigation (the Hawks); the National Prosecuting Authority (NPA); and to a lesser degree, the Independent Police Investigative Directorate (IPID). Manipulation of these agencies by the Executive has ensured impunity for members of the Executive (including the former president himself), their key political allies, and those involved in their networks of patronage. It has also been used to intimidate and coerce opponents, as well as employees of the criminal justice system. In addition, the crime intelligence division of the SAPS was used to promote the power of the dominant faction within the ANC during the Zuma era, inter alia by manipulating party processes such as national, provincial and local internal elections. Manipulation of the criminal justice system was also in evidence during the Thabo Mbeki era. However under the Zuma era it was pursued more consistently and aggressively, to the point where it was pursued at the expense of the criminal justice system and thus of the safety and security of South Africans. The issue of manipulation of criminal justice agencies is directly relevant to the terms of reference of this
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