OPINION: Structural problems in the NPA could trip up Batohi
The NPA after almost a decade of "capture" is a hollowed-out version falling far short of its constitutional and legislative goals. The appointment of a new NDPP is but the first step towards regaining its credibility, writes Phephelaphi Dube.
As the euphoria settles in post the appointment, through a credible and transparent process, of an eminently qualified National Director of Public Prosecutions (NDPP), it is perhaps the opportune time to consider the functioning of the National Prosecuting Authority (NPA).
The importance of the NPA in South Africa's democratic project cannot be over emphasised. The Constitution obliges the state to prosecute those offences which threaten or infringe the rights of citizens and further makes provision for the NPA to institute proceedings on behalf of the state.
The NPA is tasked too, with carrying out any necessary functions incidental to instituting criminal proceedings. As such, it is apparent that the prosecution of crime is an important constitutional objective, which the NPA alone fulfills. To this end, the NPA Act 32 of 1998 is vested with prosecuting authority by the Constitution.
Taken together, the NPA Act and the Constitution require that the NPA perform its functions honestly, fairly and without fear, favour or prejudice. Similarly, decisions to institute criminal prosecution should be taken honestly, fairly and without fear, favour or prejudice. Prosecution policy must be determined honestly and should be appropriate for the needs of the country.
The criminal justice system, through the NPA, should be fairly administered with the NPA ensuring that any improper interference, hinderance or obstruction of the prosecuting authority by an organ of state is not tolerated. This means that the NDPP as the head of the NPA, has to be, in the words of the Constitutional Court in the Simelane matter "sufficiently conscientious and has the integrity required to be entrusted with the responsibilities of the office".
Nonetheless, while there have been some court led interventions aimed at ensuring greater independence of the NPA, arguably, a few concerns remain over the structural independence of the prosecuting body which may ultimately render the NPA susceptible to political interference.
It bears mention that it was only through the intervention by civic society group, Right2Know, that the interviews were held in public. This intervention was in the form of a successful challenge before the Gauteng High Court in Pretoria to President Cyril Ramaphosa's initial decision to hold the interviews behind closed doors.
Another court-led intervention in August saw the Constitutional Court confirm a previous high court order in which sections 12(4) and (6) of the NPA Act were found to be constitutionally invalid. These subsections respectively allowed for the extension of the NDPP's term of office and indefinite suspension of the NDPP and deputy NDPP without pay by the president. The provisions were said to undermine the independence of the office of the NDPP.
As such, due to the fact that these amendments to the NPA Act have been through courts processes, as opposed to either members of the executive or the National Assembly, it is debatable whether there is genuine political will to ensure a prosecutorial body which has a sufficient degree of independence and is insulated from political interference.
President Cyril Ramphosa's decision to appoint a panel to conduct interviews for the NDPP should be lauded, but a concern arising is that this may very well be a once-off arrangement if there is no amendment made to the NPA Act to guarantee that future appointments are made after a consultation process has taken place. Section 9 of the NPA Act only requires the NDPP to be a South African citizen, to possess legal qualification that would entitle him or her to practice in all courts in the country and lastly, the person must be a "fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned".
The NPA Act does not define the qualification of a "fit and proper person". Read together with the fact that according to the NPA Act, the president has the sole discretion to appoint the NDPP means that the appointment process still remains vulnerable to political interference.
Additionally, the fact that there is no independent oversight over the services provided by the NPA and specifically the decision not to prosecute, where at face value, a case exists is an aspect of the NPA Act which warrants some amendment. The short history of the NPA reveals instances where decisions to either prosecute or not to prosecute were seemingly taken due to political considerations.
As such, there is a need for the NPA Act to provide for some form of independent oversight mechanism to focus not only on possible prosecutorial misconduct but also providing a means to review prosecutorial discretion in certain circumstances.
The NPA already possesses investigatory powers, in addition to the power to institute criminal proceedings. Specifically, the NPA Act establishes an Investigative Directorate "with limited investigative capacity, to prioritise and to investigate particularly serious criminal or unlawful conduct committed in an organised fashion . . . with the object of prosecuting such offences or unlawful conduct in the most efficient manner".
As such, there is perhaps no need for reform regarding the NPA's investigatory powers, but it is apparent that the organisation lacks the skills and resources necessary to secure conviction in particularly complex financial crime. As such, the hiring of skilled personnel should be a priority for the new NDPP.
The appointment of an appropriately qualified NDPP through a transparent process is an important stop gap measure in the rebuilding public confidence in the NPA. However, there are structural problems as part of the NPA which, if not addressed will stymie progress towards a culture of accountability, fierce independence and attempts towards ending impunity.
The NPA as an institution after almost a decade of "capture" and political interference is a hollowed-out version falling far short of its constitutional and legislative goals. The appointment of a new NDPP is but the first step towards regaining credibility of the NPA.
A reform of the identified structural problems of the NPA Act must become a priority for both the executive and the National Assembly.
- Dube is a doctoral candidate at the North West University whose research focuses on constitutional property law. This article is written in her personal capacity.
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