Earlier in October National Director of Public Prosecutions (NDPP) Shamila Batohi told Parliament’s justice committee that the agency wanted to be moved from under the umbrella of the justice department so that it can operate more like a Chapter 9 institution (like the Public Protector or the Auditor-General) to ensure its independence.
Perhaps misunderstanding the principle involved (and wrongly conflating the government with the state), some commentators have raised concerns about this proposal, arguing that the NPA prosecutes on behalf of the government and cannot operate separately from it, and that it would be too powerful and unaccountable if it becomes administratively and financially independent.
Let me try to explain why these commentators are wrong.
There is no dispute that the Constitution guarantees the independence of the NPA. The Constitutional Court has affirmed several times (notably in the First Certification judgment) that section 179(4) of the Constitution provides a constitutional guarantee of independence for the NPA. However, in the early years after the adoption of the Constitution, there was considerable confusion and disagreement about the nature of the independence of the NPA established by section 179.
This confusion may have arisen because many democracies provide for political oversight or management over the prosecution authority. This is because part of any elected government’s mandate is to implement policies to reduce crime, which means that the government of the day must have some influence over the prosecutorial priorities of the prosecution service. A government may have promised its voters that it would pay special attention to the prosecution of corruption or gender-based violence, and, so the argument goes, it should therefore have the ability to set priorities for the prosecution service to help deliver on such an electoral promise.
Thus, in the US, the attorney-general (a political cabinet appointee) supervises and controls prosecutions under the federal criminal laws. The integrity of this system often relies on unwritten rules and long-established norms to avoid abuse and to prevent political interference. When a politically appointed attorney-general goes rogue, the integrity of this system will be compromised. This has recently happened in the US, as William Barr, Donald Trump’s attorney-general, has shamelessly abused his position to try to protect Trump and his allies from the consequences of their criminality.
The South African Constitution provides an elegant solution to this problem, vigorously safeguarding the independence of the NPA while creating mechanisms that allow the minister of justice to influence its prosecutorial priorities and remain informed about its work. Thus section 179(5)(a) of the Constitution provides that the NDPP must determine, with the concurrence of the minister of justice, “and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process”. This allows the government to influence the broad prosecution priorities of the NPA, but prohibits it from influencing specific prosecutorial decisions.
Section 179(6) of the Constitution further provides that the minister of justice “must exercise final responsibility over the prosecuting authority”. In 2009, the Supreme Court of Appeal (SCA) held in National Director of Public Prosecutions v Zuma that this provision does not allow the minister to instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution. However, the minister “is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority”.
The SCA also confirmed that it is “non-contentious… that the NPA must not be led by political considerations and that ministerial responsibility over the NPA does not imply a right to interfere with a decision to prosecute”. In 2012, the Constitutional Court reaffirmed this principle in Democratic Alliance v President of South Africa and Others where it stated:
“The office [of the NPA] must be non-political and non-partisan and is closely related to the function of the judiciary broadly to achieve justice and is located at the core of delivering criminal justice.”
The statement that the office of the NPA is closely related to the function of the judiciary is important as it suggests that the constitutionally protected independence of the NPA requires more than a prohibition on direct political interference in prosecutorial decisions. The institutional independence of the NPA must also be safeguarded to protect the NPA from indirect interference. Institutional independence is threatened when the security of tenure of the NDPP is not sufficiently protected (this is currently of grave concern in South Africa), and when the financial and administrative independence of the NPA is not sufficiently protected.
This is because a lack of such independence would allow the government of the day to “punish” the NPA for going after politically powerful criminals, by cutting its budget or by interfering in the administration of the NPA to weaken its ability to do its job efficiently. It would, for example, allow an unscrupulous government to put pressure on the NPA to cease certain prosecutions on the ground that it amounts to wasteful expenditure, claiming that it is not interfering in the independence of the NPA, but merely ensuring that it uses its resources efficiently.
…the fact that the NPA remains accountable to the National Assembly puts paid to the argument that the NPA will become all-powerful as it will not be accountable to anyone if it is not accountable to the minister of justice. The NPA, it must be said, is also accountable to the courts, which can review and set aside its irrational decisions – as the courts often did during the Zuma years, in which the NPA was politically captured.
Considering the independence of Chapter 9 institutions, the Constitutional Court confirmed the importance of safeguarding institutional independence. Thus, in Independent Electoral Commission v Langeberg Municipality thus held that while Chapter 9 bodies are organs of state as defined in section 239 of the Constitution, these institutions cannot be said to be a department or an administration within the national sphere of government over which Cabinet exercises authority.
These institutions are state institutions, but are not part of the government. And in NNP v Minister of Home Affairs the Constitutional Court held that for these institutions to operate independently and for them to fulfil their respective tasks without fear, favour or prejudice, the administrative independence of these institutions should be safeguarded. This implies that these institutions must have control over those matters that are directly connected with their functions under the Constitution and the relevant legislation.
Moving the NPA from under the umbrella of the justice department would remove any doubt about its administrative independence and would bring it in line with the position of Chapter 9 institutions. In any event, both Chapter 9 institutions (in terms of section 181(5) of the Constitution) and the NPA (in terms of section 35 of the NPA Act) are accountable to the National Assembly – not to the relevant minister or a DG – underscoring the fact that these bodies are independent of the government and government departments and not under its authority. Moving the NPA from under the umbrella of the justice department would therefore bring the actual position on accountability in line with what the act provides for.
Moreover, the fact that the NPA remains accountable to the National Assembly puts paid to the argument that the NPA will become all-powerful as it will not be accountable to anyone if it is not accountable to the minister of justice. The NPA, it must be said, is also accountable to the courts, which can review and set aside its irrational decisions – as the courts often did during the Zuma years, in which the NPA was politically captured.
While such a move is needed, it will unfortunately not be sufficient to safeguard the independence of the NPA, as the National Prosecuting Authority Act does not at present adequately protect the security of tenure of the NDPP. The act allows for the removal of the NDPP for misconduct; on account of continued ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned after an inquiry had been held.
But few of the procedural safeguards that apply to the removal of Chapter 9 office bearers apply to the removal of the NDPP. The president decides whether to start the process of removal and appoints an inquiry to start the process. But there is no requirement that the person conducting the inquiry must be impartial or independent. Furthermore, it is not clear on what basis the inquiry (which can be headed by anyone selected by the president – including a fellow party member) or president or Parliament will find that the NDPP is no longer a fit and proper person.
As the removal of Vusi Pikoli as NDPP illustrates, the removal process can be misused by an unscrupulous president to undermine the independence of the NPA in an attempt to stop the prosecution of the president’s political or business allies or punish the NDPP for not toeing the line. This can be done by using the threat of removal to place pressure on an NDPP or a director to comply with “requests” or directives from the executive. The president and the majority party in the National Assembly could also easily ensure that the NDPP is removed on trumped-up charges when he or she makes decisions that go against the interests of the president or the governing political party.
At the time of writing it is unclear how influential the criminal elements within the governing party are who potentially face arrest and prosecution by the NPA. It is also not clear how serious the threat to recapture the NPA is. But whether the power of the politically connected crooks is waning or not, there is an urgent need to strengthen the institutional independence of the NPA to protect it from the political pressures wielded by the corrupt. DM