Although civil society organisations have not said who should replace Andrea Johnson at IDAC, they have said that appointing a new head must be done by an independent panel of experts. In the meantime, an internal acting head should be appointed.
The resignation of Andrea Johnson as Investigating Directorate Against Corruption (IDAC) head is the perfect opportunity to reform the anti-corruption unit and its appointment processes, analysts say.
Johnson’s weekend resignation request was accepted by President Cyril Ramaphosa and National Prosecuting Authority (NPA) head, Advocate Andy Mothibi.
READ | IDAC head Johnson asks Ramaphosa, Mothibi for permission to resign – with immediate effect
IDAC is a unit within the NPA. Its head must be appointed by the president after consultation with the Minister of Justice and the National Director of Public Prosecutions (NDPP).
The civil society organisations News24 spoke with on Monday said they would prefer to see an acting head first – preferably from within the NPA, and then to institute an independent panel to screen and recommend a new Investigating Director (ID).
Oversight
The Prosecutions Projects says that “South Africa has no transparent, rules-based process for appointing the senior leadership of its prosecuting authority”.
This process remains substantially in the hands of Ramaphosa, it says, with no “requirement for independent, merit-based screening or public scrutiny”.
Lawson Naidoo, executive director for the Council for the Advancement of the South African Constitution (Casac), says despite this, “there is nothing to prevent the president from initiating such a selection process”.
He said it was done with both the appointment of former NDPP Shamila Batohi and Mothibi.
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Corruption Watch’s spokesperson, Janine Erasmus, says that IDAC has extensive powers that must be subjected to oversight. This hasn’t been the case since it became permanent.
“IDAC has operated without oversight for two years, and we see now the result of that flaw in the system,” Erasmus says.
One oversight role would be the selection process, while another would be oversight of IDAC itself.
IDAC’s Ombud Oversight Office was only formally established earlier this month, with retired judge Takalani Joseph Raulinga as its head.
Raulinga’s office confirmed last week that it had received complaints against Johnson and is looking into them.
Erasmus says it wants Johnson to be held “personally accountable” and not get off lightly by resigning.
“We are seeing that she didn’t do her job properly and must be held responsible for it. So, by merely resigning, we don’t feel that is enough of a consequence for her.”
Chair of Public Interest SA, Tebogo Khaas, says “we mustn’t be fooled into thinking that Johnson resigned of her own volition”.
READ | How IDAC built a case on a letter that said ‘nothing at all’
He says she resigned due to public pressure, and given that she was summoned to a meeting with Mothibi and the justice minister, that must have played a part in her resignation.
“She still maintains that she’s been attacked in circumstances where we know that nobody was attacking her, at least not us or civil society,” Khaas adds. “We were just holding her to account insofar as her conduct while she was in office.”
Who should take over?
None of the organisations offered any names on who they believe should take over, either as acting or permanent ID.
Khaas believes that the acting appointment should be the person who usually stood in for Johnson, so that they can hit the ground running. But he also wants to see a public process take place for a permanent IDAC head.
Naidoo says that this acting appointment must be done with urgency because “somebody needs to take decisions and to be accountable”.
He adds that an acting person would normally be an internal NPA appointee, however, “given the upheaval at IDAC and the number of senior investigators that have been implicated in various allegations, it may not be surprising that if it’s someone that is not from within IDAC”.
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IDAC does not have a second in command per legislation. Deputy NDPP’s, however, can be seconded to it. Advocate Annemarie Friedman, a deputy NDPP, is listed on the NPA’s website as second to Johnson at IDAC.
Naidoo states that whoever takes over must ensure a handover is received from Johnson “so existing investigations and cases can proceed properly”.
Erasmus says that although they have no names yet on who should take over, that person must learn from the Johnson saga and be meticulous from the moment they step in.
“We would like to see that these cases that Johnson signed off on are looked at properly, scrutinised, and that we are reassured as the public that there are proper reasoning and proper grounds for those investigations.”
Two names that have surfaced to replace Johnson, include Advocate Nicolette Bell – a deputy NDPP; and Advocate Nkebe Kanyane – the head of the Specialised Commercial Crime Unit. A third name includes former deputy NDPP Anton du Plessis.
All organisations are clear that the process for a permanent IDAC head must be done through an independent panel, like the one that was established for Mothibi – but better.
That panel shortlisted six candidates but concluded in a report to Ramaphosa that none of the interviewed candidates was suitable for the position.
Ramaphosa then appointed Mothibi – who was the Special Investigating Unit’s head – even though he was not on the list or interviewed by the panel.
There is no legislation requiring an independent panel to sift through candidates to lead South Africa’s premier anti-corruption bodies.
This is why The Prosecutions Project made three calls on Monday: to immediately establish an independent panel for Johnson’s now-vacant post; to amend the NPA Act to replace presidential discretion with independent oversight; and for Parliament to fast-track this reform.
“Now is the time for decisive leadership. The appointment of the next ID must inspire public confidence and demonstrate a commitment to prosecutorial independence,” it says.
