The National Prosecuting Authority is in crisis and is failing in its core business — the prosecution of suspects
The NPA is perhaps one of the most unaccountable institutions of state. While the decision to prosecute is reviewed by a court, the decision not to prosecute is taken in secrecy and it is this decision, not to prosecute, that is perhaps even more important than the decision to prosecute.
The National Prosecuting Authority (NPA) occupies a special position in the constitutional landscape and has a particular relationship with the principle of accountability. Looking back at the NPA over the past 10 to 15 years there is perhaps a sense that it has always, like many other institutions of state, been vulnerable to crisis.
Post-2010, this vulnerability moved to the fore and was exploited. When the National Director of Public Prosecutions (NDPP) told Parliament on 8 December 2021 that the institution is not in crisis (following a high-level resignation), the members of the Justice Portfolio Committee appeared to be less than convinced. The lack of results from the NPA in high-level corruption cases adds to the conclusion that there are more fundamental problems in the NPA than meets the eye.
It is necessary to take a step back and examine the nature of an institutional crisis, whether the NPA meets these criteria, and what are the better or worse ways to respond to such a crisis. In its briefest form, an institution is in crisis when nothing anchors the future. Its environment has changed rapidly and fundamentally, and the existing institutional frameworks for handling information and guiding decisions are no longer suitable or useful. Such a crisis occurs when the institutional structure of a policy sector “experiences a relatively strong decline in (followed by unusually low levels of) legitimacy”. An institutional crisis is thus fundamentally about a substantial and rapidly developed legitimacy deficit.
In taking stock of the NPA one can indeed list many problems, but three issues stand out. The first is that every reliable piece of data we look at tells us that the NPA’s performance as, for example, measured in prosecution throughput and the consequent impact on crime, has deteriorated in recent years. Bluntly put, it is increasingly failing in its core business, namely the prosecution of suspects, and especially those individuals having a disproportionate impact on crime, safety and governance.
Secondly, despite the wording of the Constitution, it is clear that the NPA is not an independent institution, in neither its institutional arrangements (it is a programme in the Department of Justice) nor its operations, as reflected in its choices and priorities in prosecutions.
Thirdly, whether by design or practice, it is perhaps one of the most unaccountable institutions of state. While the decision to prosecute is reviewed by a court, the decision not to prosecute is taken in secrecy and it is this decision, not to prosecute, that is perhaps even more important than the decision to prosecute. The strategic priorities of the NPA are largely unknown and it is equally unknown what informs them.
Parliament has largely failed to keep the NPA accountable and the NPA has of itself not stepped forward to demonstrate a greater desire towards transparency and accountability, especially if one looks at its most recent annual report.
Declining performance (and an increase in violent crime), the lack of independence and poor accountability has resulted in a fairly steady decline in trust in the NPA and the criminal justice system more generally. Trust is important because trust determines legitimacy: do we trust the state to use its power to the benefit of the greater good? Do we trust the NPA to prosecute criminal suspects, and more importantly, to prosecute them all as equal before the law? Trust, therefore, plays an important legitimising function of state power, and even the use of coercion. Legitimate authority combines the right to rule with permission to enforce that right, even with coercion.
It is the constitutional mandate of the NPA to prosecute suspects on behalf of the state with a particular emphasis on respecting, protecting, promoting and fulfilling the rights in the Bill of Rights. This leads us to the question: if the NPA is not prosecuting, who will? It is then in this sense that one is left with the view that the future of prosecution in South Africa is un-anchored.
During a crisis, the policies, paradigm, goals and functioning of a policy sector are severely criticised, such that the crisis poses a severe threat to the core values of a social system requiring stakeholders to make quick decisions. In the case of the NPA, one can then conclude that it firstly largely failed as the state’s core accountability mechanism, and secondly, that it was influenced, if not captured, by interests not serving constitutional obligations.
From a crisis emerge two results. Firstly, policymakers are under extreme pressure to find a solution to end the crisis. The media, civil society and Members of Parliament will critically question the functioning of the policy sector and demand better performance, and question the policy sector’s regulatory framework and operations procedures.
The second result is that the critical examination of the existing paradigm, policies, goals and functioning leads to diminished support for them and thus the constraints imposed by them are eroded. As these constraints are eroded, it becomes easier for stakeholders to push for more substantial and broad-ranging reform and introduce new policies, goals and modes of functioning. Due to the crisis and the diminished constraints imposed by existing policies, policymakers looking to end the crisis will have more leeway to suggest measures that were hitherto unacceptable or even unheard of.
How a policy sector responds to a problem stems from the inherent tension between preservation (preserving existing values, traditional ways and adhering to institutional rules) and responsiveness (the ability to absorb new developments and adapt). A policy sector response to a crisis may also be influenced by endemic factors resulting in the further erosion of legitimacy. Research distinguishes three such endemic factors: crisis by ignorance, crisis by rigidity, and crisis by failed intervention.
Crisis by ignorance may result when highly institutionalised sectors continue to look inward rather than outward for solutions; it has been termed “cognitive arrogance — a hermetic, chronically overoptimistic self-image that shuts out discrepant information”.
In sectors where institutionalisation is low, information cannot be assimilated in a useful manner as there is no agreed-upon interpretive framework to make sense of the large volume of information. Crisis by rigidity occurs in highly institutionalised sectors when changes in the environment are noted but little is done — the too-little-too-late phenomenon. In sectors with low levels of institutionalisation, the capacity to implement and consolidate reforms is absent and the sector experiences coordination problems, “zig-zag policies and inter-organisational friction”. Crisis by failed intervention can take on two forms: “applying the wrong solution to the problems, or applying solutions to the wrong problems”.
Prosecution services, and not only the NPA, are inherently conservative and resistant to change. However, the events of the past decade have shown a range of vulnerabilities in the architecture and performance of the NPA and these have developed to create an institutional crisis. The picture emerging from the NPA is not entirely clear, containing elements of all three types of crises.
Firstly, there is important information that the NPA is simply not dealing with, such as how performance is measured and how performance measurement is in itself used to shut out discrepant information.
Secondly, the highly centralised nature of the NPA and the absence of formal mechanisms for engagement with a variety of stakeholders (eg, civil society and provincial governments) reflects a rigid approach where priorities are driven from the centre to serve the institution regardless of what happens in the environment. Failed interventions abound, whether one looks at the lack of prosecutions for corruption, human rights violations, or the sudden revival of apartheid-era cases.
The NPA also seems to exhibit different levels of institutionalisation, with some responses indicating an openness to new suggestions but also zig-zag policies and inter-organisational friction, and others reflecting an attitude of “it is business as usual”.
Declining performance, lack of independence and little accountability were identified as the overarching problems, resulting in low levels of legitimacy. This meets the requirements for a crisis and it is important to acknowledge it as such. The opaqueness of the NPA also makes it unknown if there is indeed an agreed-upon interpretative framework in place since the Prosecution Policy and Policy Directives were last reviewed in 2014.
What there seems to be some degree of consensus on, as reflected in the statements of NPA staff to Parliament (on 8 December 2021) which were not disputed, is the lack of capacity to prosecute more complex cases and implement reforms. This calls into question the viability of any reform plans.
To reverse the legitimacy deficit, the NPA needs to prosecute impact cases and this may be the State Capture cases, but one may very well argue that the district and regional courts ought to be the priority. The lack of administrative and operational independence can be addressed through law reform and must be a priority. The NPA must report properly to Parliament and the public, providing substantially more detail in its reports than has been the case.
There is no recipe for success here and it is important to focus on short-, medium- and longer-term goals. There is little sense in throwing all resources at, for example, the high-profile corruption cases, but allowing the district and regional courts to deteriorate even further. Concentrating resources on the immediate to show rapid results under political pressure may be extremely harmful to the future of the institution.
Three issues are, however, regarded as critical pointers for a way forward. The first step would be to acknowledge the institutional crisis. To maintain a façade that the NPA is able to deal with its current and future challenges is simply not supported by the history of evidence. Acknowledging the crisis means being transparent about the failures and challenges, but perhaps more importantly, their reasons.
The second step would be to acknowledge that radical change is necessary, change that questions the very foundational assumptions of the institution, the nature of its core business and how performance is measured. It would require a deeply critical examination of the institution against its constitutional obligations working from the point of departure that it can no longer be “business as usual”.
Third, policy and practice must be based on evidence to ensure that resources are used efficiently and effectively, that prosecutions making an impact on levels of trust and perceptions of safety are pursued, and that the NPA is indeed holding offenders to account. DM
Lukas Muntingh is Associate Professor and heads up the Civil Society Prison Reform Initiative (CSPRI) at the Dullah Omar Institute, University of the Western Cape.