What the Zondo Commission did not say about the NPA and its need of wide-ranging reform
That the Zondo Commission did not make recommendations for systemic reform of the National Prosecuting Authority is unfortunate and is a lost opportunity. The NPA is in need of reform and this centres on two issues: institutional independence and accountability.
The Zondo Commission made about 350 recommendations to the National Prosecuting Authority (NPA), the bulk of which are for prosecutions while a few concern asset recoveries.
Most of the recommendations to prosecute deal with offences under the Prevention and Combating of Corrupt Activities Act, the Prevention of Organised Crime Act and the Public Finance Management Act.
In general, the recommendations are very specific, for example, that the commission found there is prima facie evidence of wrongdoing by person X and that the NPA should consider prosecuting person X for offences under such-and-such legislation with reference to specific sections. That the commission made such specific recommendations is important, because if the opposite was the case (vague and general recommendations), the NPA and in particular the Investigating Directorate (ID) may very soon be accused of political targeting by the unfortunate recipients of its attentions.
Although the specificity of the commission’s recommendations may not eliminate this risk altogether, it does place the NPA and the ID on the front foot so that it may argue that it is acting on the recommendations of a judicial commission of enquiry and that there is no substance to claims of political targeting.
The reverse is also true, namely that it may be asked to explain why it did not follow a particular recommendation from the commission, but that is perhaps less of a risk.
While these recommendations do assist the NPA on the immediate path forward, the commission did not deal with the systemic, structural, legal and constitutional issues that placed the NPA at risk of capture in the first place. In this regard the broad concerns relate to the independence and accountability of the NPA.
An example is the appointment and dismissal of the National Director of Public Prosecutions (NDPP). The issue has found its way to the Constitutional Court in the Shaun Abrahams/Mxolisi Nxasana matter.
This was not the first time the issue has come to the fore and one recalls the dismissal of then NDPP, advocate Vusi Pikoli, who fell out of favour with President Thabo Mbeki. Despite there being no finding that he was not fit and proper to hold the office of NDPP, it was ultimately Parliament that found other reasons and endorsed the president’s recommendation to dismiss him; by then Kgalema Motlanthe was president and he followed through.
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After Pikoli’s dismissal, the Supreme Court of Appeal (SCA) and the Constitutional Court found then NDPP Menzi Simelane not fit to hold office, but importantly, provided much-needed clarity on what “fit and proper” means.
Appointment and removal
The Zondo Commission also deals with the appointment and removal of the NDPP with reference to the Abrahams/Nxasana matter in Part 6, and observes:
“In the view of the Constitutional Court, the inference was inescapable that former president Zuma effectively bought Mr Nxasana out of office. His conduct wholly compromised the independence of the office of NDPP. It conduced to the removal of ‘troublesome’ or otherwise unwanted NDPPs through buying them out of office by offering them significant amounts of money.”
That is, however, where the commission leaves it. For reasons that are not clear it chose to refrain from making recommendations for structural and systemic reform of the NPA while it was well within its mandate to do so.
By comparison, the commission did not hold back in making systemic recommendations regarding state procurement, state-owned enterprises, the role and functions of Parliament and the electoral system, to name a few. That the NPA was in trouble and remains in a precarious position is public knowledge and the Mokgoro Commission (investigating the fitness of advocates Jiba and Mrwebi to hold office in the NPA) recognised the systemic problems and concluded in 2019:
“Over the years, the NPA has been beleaguered by allegations of malfeasance and political interference. A chorus of court decisions, civil society, media and NPA members themselves have attested to the fact that there have been serious concerns of impropriety within the institution. This is particularly troubling, given the critical role that the NPA plays in ensuring that the rule of law, the very foundation of our constitutional democracy, is both respected and safeguarded.”
The NPA is by law the only state entity that can initiate criminal prosecutions and it failed to do so as per the State Capture narrative, and in some cases did so deliberately. The implications of this are significant since the NPA represents the last line of defence protecting the constitutional values of the rule of law and accountability.
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The current regulatory framework governing the NPA has significant design weaknesses, and these were exploited over the years, resulting in a loss of trust in the criminal justice system and the NPA in particular. The lack of trust and consequent legitimacy deficit in the criminal justice system is visible in nearly every single performance measure we look at.
That the Zondo Commission did not make recommendations for systemic reform of the NPA is unfortunate and represents a lost opportunity. This is regrettable, especially since the NPA made a submission in 2021 to the commission, drawing attention to the critical importance of its independence. In effect, it was asking the commission for a recommendation in this regard.
The NPA remains in need of systemic reform and this centres on two issues: institutional independence and accountability of the NPA. In respect of independence, two issues require attention.
The first is that the NPA needs to be structurally and functionally independent of the Department of Justice and not a programme in that department as is currently the case. It leaves it vulnerable to political and financial pressure. There are now at least two Constitutional Court decisions providing much-needed clarity on the meaning of independence with reference to state institutions.
In Glenister the court dealt with the independence of the Hawks and found that the Hawks were insufficiently insulated from political influence in their structure and functioning. In Sonke the court dealt with the independence of the Judicial Inspectorate for Correctional Services (JICS) and relied heavily on Glenister as to the structural, including financial, and operational independence of the JICS, noting that the inspectorate should be structurally and operationally independent, and be seen as such in order to fulfil its mandate.
The second independence issue is that the appointment process for the NDPP and senior echelons of the NPA needs to be reformed to ensure that clear and meaningful criteria are applied and that a selection process is established that is inclusive and transparent.
The appointment of the NDPP cannot be the sole prerogative of the President, as is the case now. It simply does not contribute to the constitutional requirement that the NPA must be independent or, as phrased in the Constitution, prosecute “without fear, favour or prejudice”.
The third independence issue is the dismissal of the NDPP. The removal of Pikoli showed the shortcomings of the current framework and more particularly that the NDPP was vulnerable to an ordinary parliamentary majority even if there was no finding that he was not a fit and proper person. Perhaps if Parliament had more ownership of the appointment of the NDPP, it may encourage a more independent-minded approach.
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The fact that not one NDPP since 1998 has completed their term of office is indicative of the precariousness the current framework places the NDPP in.
One option is that the NDPP should enjoy similar protection to that of the Chapter 9 institutions requiring an impeachment procedure and a two-thirds majority for removal. This may, however, bring its own risks in the event of a particularly problematic incumbent.
The appointment and dismissal procedures concerning the NDPP need to be based on shared principles and procedures. As it stands, the NDPP is appointed at the sole discretion of the President, but for dismissal the President calls on Parliament, the body that elected him, to confirm or set aside the recommendation for removal.
A solution is not self-evident and there may not be a perfect one, but steps can be taken to reduce the risk of a poor appointment and similarly, once appointed, provide the NDPP with sufficient protection to act independently.
While the NPA’s core business is to hold criminal suspects accountable, it is itself not known for its transparency and accountability. This can, at least in part, be ascribed to the failures of Parliament to hold the NPA to account, but there are other reasons too, and four systemic reforms are required.
The first is that there need to be clear standards in respect of internal accountability. Internal accountability refers at least to internal performance management and the disciplinary system. At present it seems that NPA data on disciplinary actions against employees are reported with the Department of Justice in the latter’s annual report. It is thus not possible to ascertain the extent to which the NPA is enforcing its disciplinary code and holding individuals accountable against its Code of Conduct and Code of Ethics.
The second issue is external accountability, and the failures of Parliament have been noted by the Zondo Commission, although not specifically in relation to the NPA. Nevertheless there need to be clear guidelines on what is reported to Parliament, the scope and regularity of that reporting and the consequences of non-compliance.
For example, the Criminal Procedure Act (s 342A(7)(a)) requires that the NDPP submit twice per year a report to the minister of justice on the duration in custody of awaiting-trial prisoners who must then table this in Parliament. As far as could be established, this may have been done once since it became a requirement in 2003.
The ability of Parliament to hold the NPA accountable also will be greatly enhanced by the disaggregation of performance data. This implies that not only must the NPA submit comprehensive data-rich reports to Parliament, but that the data must be disaggregated to the level where meaningful analysis is possible and not lost in bland national statistics.
Such information is important to those entities affected by crime, but also to those who are also stakeholders in preventing and reducing crime, such as provincial and local governments as well as civil society including the private sector. The most recent NPA Annual Report (2021/2) is a notable improvement in this regard and to this should be added that the NPA Act itself gives fairly detailed guidance on the scope of reports from the provincial directors to the NDPP.
Meaningful and disaggregated reporting will also help the NPA to allocate its resources better for more impact. For example, to ensure that prosecutor skills are matched with crime type and locality trends.
To prosecute or not to prosecute
The third external accountability reform concerns a mechanism to review decisions not to prosecute. Whether cases are selected for review at random or thematically, or by strategic priority, is a matter for debate. While the decision to prosecute is reviewed by a court, the decision not to prosecute is essentially made in secret.
Such a mechanism is more likely to find support if the aim is to develop guidelines as compared with intervening in specific cases. The current trend indicates that the default position is not to prosecute and the requirement remains that there must be a “reasonable prospect” of a conviction, but this seems to be interpreted to mean an almost 100% chance of conviction.
The extent of not pursuing prosecutions (either by not enrolling or withdrawing later) is of such a scale that it severely undermines any credibility claims made by the NPA.
From 2002/3 to 2019/20 (thus excluding the Covid-19 impact) the number of prosecutions declined by about 41% and convictions by 35%. The most rapid decline (about 31% for both figures) was from 2017/18 to 2019/20 following the Prince decision decriminalising the possession and cultivation of cannabis for private use.
This drop clearly shows the reliance the prosecution service placed on possession of cannabis cases, and most likely guilty pleas, to prop up the numbers. In actual numbers, prosecutions declined from more than 407,000 in 2002/3 to 153,000 by 2021/22.
The inescapable conclusion is that large numbers of potentially serious cases are not being prosecuted and the reasons for this are not explained. Not pursuing a matter must be a well-informed decision which a prosecutor must be able to explain against objective criteria.
Policy and procedure
The fourth external accountability reform concerns the regular review of key policy and procedure documents. The current prosecution policy falls short in many ways as it is too general and vague and the prosecution directives are confidential. How policy is made has a substantial impact on the quality of the product.
The current prosecution policy was last seen by Parliament in 2014, as far as could be established. The regularity of such reviews and who does the review and how the review is done are further factors that need to be addressed. Much of the NPA’s performance woes can be ascribed to the fact that it developed the prosecution policy in-house and the policy directives in secret. The directives, for example, create real incentives for not prosecuting government officials. It is simply intolerable from an equality perspective.
The above recommendations will require law reform, including constitutional changes and this may seem a bridge too far. Not doing anything will, however, not make the problem go away. History has taught us that the current regulatory framework is vulnerable to abuse and capture.
One would hope that Parliament takes the initiative and begins developing a reform agenda for the NPA with a view to change the NPA Act, set new reporting requirements for the NPA, review policies and directives and start doing the groundwork for constitutional reform. There is indeed much that can be done before drafting new law.
The other, and probably more likely, scenario is that Parliament will let the opportunity go by and wait for litigation and the consequent instruction from the Constitutional Court to fix a legal problem that could have been fixed years earlier. 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.