OP-ED: TRANSPARENT JUSTICE
The NPA needs more structural independence and accountability before it can say ‘trust us’
It should not be necessary for civil society or political parties to take the National Prosecuting Authority’s decisions on review in court — an expensive, cumbersome and slow method of holding the institution to account and ensuring that corrective action is taken.
On 28 October 2021, it will be 1,000 days since Advocate Shamila Batohi assumed office as National Director of Public Prosecutions. She inherited a National Prosecuting Authority (NPA) which was prosecuting fewer and fewer serious matters, slowly, while withdrawing important matters with bias.
Although some progress has been made in righting the NPA, there is a need for structural reform which will enhance independence. For this to result in the desired actual and perceived independence of action, it must be paired with far greater accountability.
Decisions to withdraw lie at the heart of the NPA’s failure to be independent. The withdrawal of Jacob Zuma’s corruption case in April 2009 cleared the way for his presidency. Richard Mdluli, then head of Crime Intelligence, had charges relating to the looting of the informers’ fund, as well as kidnapping and assault, withdrawn in 2011. NGO Freedom under Law took the Mdluli withdrawal to court in 2013 and won; in September 2020 he was sentenced for the latter matter but the corruption case remains. The Zuma withdrawal was also challenged in court successfully by the Democratic Alliance in 2016; his prosecution will continue on 11 April 2022.
The NPA was thus compromised from within, from the top, and relied on a compromised police. Although there is some evidence that there has been progress in righting the NPA, including the start of prosecutions of a few high-profile corruption cases, the slow pace of these prosecutions, the still-awaited prosecutions of matters arising from the Zondo Commission, and the spectre of potential future compromise, has resulted in attention being been turned to further reforms which may help to free the NPA to prosecute now and in future “without fear, favour or prejudice” as it is constitutionally enjoined to do.
One of the mooted reforms is to increase the structural independence of the NPA, with dependence on the Department of Justice being diagnosed as contributing to the current malaise — and also, it is suggested, contributing significantly to the former compromise of the institution. Lukas Muntingh has strongly argued for a more independent structure for the NPA, including, inter alia, the NPA having its own budget vote before Parliament, independent of ministerial and departmental control.
Calls for greater structural independence are rooted in the idea that structural independence enhances the independence of action; the need for prosecuting agencies to be independent in decision-making is acknowledged in most democracies.
While in democracies it is accepted that executive government may set priorities, executive government may not interfere in individual matters: prosecution must be independent of political or other interference in day-to-day decision-making.
Enhanced structural independence for the NPA, however, must also come with far greater accountability for the NPA if it is really to achieve the desired change. Independence cannot exist alone: it must coexist with accountability. If no one is seen to be held accountable for the independent exercise of prosecutorial discretion, how can the public ever have any assurance that decisions are not tainted or improper — that they are truly both independent and principled?
Key decisions requiring enhanced accountability on the part of the NPA are those in which the NPA is essentially the sole arbiter of the result. These include: decisions not to prosecute, to withdraw a prosecution (before plea), or to stop a prosecution (after plea, entitling the accused to an acquittal); decisions to mediate “informally” rather than to prosecute; and, to a lesser extent, decisions to grant bail in terms of section 59A (this refers to a closed list of offences, including public violence and culpable homicide, in which the prosecution, rather than the court, may initially grant bail and set a date for the accused to return to court).
The decision to prosecute or not to prosecute is probably the most difficult and important decision made in the exercise of prosecutorial discretion. Accountability requires that such decisions are in line with policy and directives and are explainable as principled.
By contrast, when the decision is made to prosecute, prosecutors will not normally be expected to justify this, as reasons will become clear when the evidence is presented in court.
A decision not to prosecute, to withdraw, or to stop will not usually be tested in court (unless actively brought under review); whether a public explanation is required depends on the facts. Where there is a strong public interest, public statements providing reasons for the stay or decision not to prosecute must be made in court or to the media.
This does not mean that investigators and prosecutors are accountable to the media in the sense that they must bow to their concerns in taking decisions; on the contrary. Accountability to the public does not mean that the actions of the prosecutor are governed by public opinion, but that decisions must be explained to the extent that they are made free from fear, favour or prejudice, and in line with previously articulated public policy and directives.
In addition, even in cases not in the public domain, investigators, and complainants and witnesses, are owed a principled explanation. Ideally, prosecutors should consult with investigators before the decision is made. The investigator may not agree with the prosecutor’s conclusion, but the investigator should feel that the conclusion reached was principled and not arbitrary.
To improve future investigations and increase the likelihood of convictions, the investigating agency must understand the evidentiary shortcomings of the case if this underpins the withdrawal or failure to prosecute, or the public interest reasons which trump an otherwise solid case.
Increasingly, a duty to inform the victim about the status of investigations and prosecutions has been recognised in democracies. Specialised training in dealing with victims and witnesses may need to be provided to ensure this duty is discharged with the required degree of sensitivity.
The NPA has often hidden behind confidentiality and secrecy stipulations even where these are not relevant (although they sometimes are, when there truly are issues of legal privilege or operational requirements), and when it does explain, tends to use unhelpful generalisations such as “no reasonable prospects of success” or “no prima facie case” which essentially explain nothing.
Clarity and transparency are key to accountability. Clarity involves the need for clear rules. Precisely because the exercise of any discretion cannot be capricious or arbitrary, it must be principled, that is, based on sound and reasonable known criteria and rules. Accountability originates in the basing of decisions on sound and reasonable criteria. Explanations are easy to provide when decisions are made in terms of applicable criteria which are clear and publicly available.
By contrast, unprincipled decisions are difficult to explain.
The NDPP must therefore provide prosecutors with guidance as to how their discretion must be exercised which should be publicly available in order for there to be meaningful public accountability, as is the case in many democracies. For example, the Public Prosecution Service of Canada Deskbook is a public document and, in Australian states, such criteria must be published in the Government Gazette, and are also published informally.
South Africa’s main Prosecution Directives are currently treated as a confidential document. The directives should be revised and made publicly available. This is because not only must the rules be clear: they must also be known and understood: in other words, there needs to be transparency.
The NPA should not be free to take independent yet biased, arbitrary or capricious action but must act within the bounds of the Constitution, the law, its own Code of Conduct, and its own publicly known pre-determined policies and priorities. It should not be necessary, as has been the case in the last decade, for civil society or political parties to take the NPA’s decisions on review in court — an expensive, cumbersome and slow method of holding the institution to account and ensuring that corrective action is taken.
Accountability involves informing and explaining and taking corrective action where necessary. The NPA does not have a strong culture of public accountability. Its prosecution directives are secret; it withdraws cases without giving clear reasons; its accountability to Parliament, although recently far more open and earnest, is based on limited national reporting and fails to shed light on exactly what is happening where — especially in relation to withdrawals, the most important power wielded by the NPA.
The NPA’s own annual reports to Parliament, legislatively required at the end of June, have fallen short of real accountability; in particular, the NPA Act requires it to report on the activities of the directors of public prosecutions (DPPs) in each of the seats of the high court. The annual report has not in two decades reported in a disaggregated fashion; a multitude of problems can be hidden under national data. In the most recent report, there was no more than a paragraph of narrative for the DPPs and no disaggregated data.
In addition, financial reporting, including the comments of the Auditor-General, tends to be found in the Department of Justice and Constitutional Development Annual Report; there, the NPA is merely “Programme 4” of the DOJCD). The NPA has also seemingly for some years failed to report twice-yearly on accused persons being held on remand for longer than a year without trial commencing, as required by the Criminal Procedure Act; if it has, such reports are not publicly available.
The NPA should also be required to report on the outcomes of its decisions on referrals for prosecution from entities such as the Special Investigating Unit (which only has powers to recover funds lost corruptly in a civil process in the Special Tribunal — criminal cases are referred to the NPA) and the Independent Policing Investigative Directorate (Ipid) which investigates inter alia deaths as a result of police action. Currently, Ipid, for example, reports that in the majority of matters the NPA does not even provide a response to the referrals it makes.
Accountability is not the opposite of independence, but rather its counterpart. Accountability must be both at the level of the institution, to other institutions of government, such as the Auditor-General and Parliament; and also to the public in matters in the public domain and to interested parties in all matters (investigators, complainants, witnesses).
If a prosecutor foresees having to publicly justify a decision, it is likely that that decision will be principled, and that reasons for that decision will be carefully articulated; the accountability consists of informing and explaining a principled decision based on previously public policy. Accountability consists also of taking corrective action. Where mistakes have been made, the NPA should explain the corrective action that has been taken.
The secrecy of a process will often generate speculation of impropriety. Conversely, transparency will support effective and meaningful public accountability. The more that the exercise of discretion is a matter of public record, the more likely the decision-making process will be seen as responsible and accountable, therefore enhancing public confidence, credibility, and ultimately legitimacy.
If the NPA is to be truly independent of action, it must also be truly accountable in order to demonstrate its independence. It is simply not enough for the NPA to say “trust us”. DM
Dr Jean Redpath is Senior Researcher with the Africa Criminal Justice Reform at the Dullah Omar Institute, University of the Western Cape.