Long way to go until we reach a constitutional nirvana

2012-10-20 11:04

Does the independence of the National Prosecuting Authority (NPA) trump the political accountability of this key institution in our criminal justice system?

We have tended to focus on the person and characteristics of the National Director of Public Prosecutions (NDPP) and executive interference with the NPA’s mandate to prosecute without fear, favour or prejudice rather than how it is held to account.

The NPA Act provides that the president must appoint a fit and proper person with due regard to their experience, consciousness and integrity “to be entrusted with the responsibilities of the office”.

The primary responsibility of the office is to prosecute criminal cases on behalf of the state “without fear, favour or prejudice”.

While the Constitution does not state that the NPA is an “independent” entity, the Constitutional Court in the Certification case ruled that the phrase “without fear, favour or prejudice” amounted to a constitutional guarantee of the independence of the organ that oversees prosecution in the country.

So while the NPA does not enjoy the same type of independence that is conferred on the Chapter 9 institutions supporting constitutional democracy, such as the Auditor General and Public Protector,

it is imbued with a level of independence and protection from improper political or external influence in the exercise of its prosecutorial functions.

Indeed, the NPA Act provides for severe penalties for any person who hinders, obstructs or interferes with the prosecuting authority in executing its functions.

This, however, does not appear to have prevented politically biased prosecutorial decision-making.

The Constitutional Court, in ruling that the president acted irrationally in appointing Advocate Menzi Simelane as the NDPP, expanded on the content of what is meant by “fit and proper”: it must be a rational appointment that conforms to the constitutional and legislative provisions, and it must not just be a partisan political appointment.

Given that the president appoints the NDPP in his capacity as head of the national executive rather than as head of state, might it be preferable for Parliament or the Judicial Service Commission to appoint the NDPP?

This may enhance the perception of the independence of the office of the NPA, and such perceptions are critical in assessing independence.

The NPA occupies a unique position in our constitutional framework. It cannot be neatly classified in terms of the constitutional separation of powers.

While it may be said that it straddles the executive and judicial arms of the state, the constitutional scheme does clearly locate it within the executive branch.

This fact does constrain its independence.

But sitting as it does so prominently in our criminal justice system, there can be no doubt that there should be a close link between the NPA and the executive.

The Constitution and the NPA Act provide that the minister of justice must exercise “final responsibility” over the prosecuting authority, but they do not define the nature of this responsibility.

The NPA is accountable to Parliament and the NDPP is obliged to provide the minister with a yearly report, which must then be tabled in Parliament.

The act further provides that the NDPP must provide reports and information to the minister as well as reasons for particular prosecutorial decisions.

It is not unreasonable to assume that the information is provided for a purpose, namely, that it would facilitate a discussion between them.

The Ginwala Inquiry stated that it would be incumbent on the NDPP to inform the minister of sensitive cases that affected national security, and that the minister would have the opportunity to bring to the attention of the NDPP information or factors beyond the NDPP’s knowledge.

Such information will enrich the nature of the decision ultimately taken by the NDPP without improperly influencing prosecutorial discretion.

The Constitution also requires that the NDPP must determine a prosecutions policy “with the concurrence” of the minister of justice, which effectively grants the minister a veto over prosecutions policy.

The prosecutions policy provides the framework for the prosecuting authority to exercise its prosecutorial powers, and allows
government to set priorities.

So it can be said that the NPA enjoys operational independence or autonomy but is institutionally accountable to the minister of justice and Parliament, as it is the minister of justice who reports to Parliament on behalf of the NPA.

This naturally creates tension between operational or prosecutorial independence and institutional democratic accountability.

It is also a tension that exists in all jurisdictions that grant the authority to prosecute to a distinct office or official.

Indeed in some countries, such as Canada for example, the prosecutorial power rests with an attorney-general who also serves as a cabinet minister, but when exercising the prosecutorial discretion, the attorney-general must act independently of the cabinet.

Conventions have developed to manage the schizophrenic roles of an office bearer of such nature.

Where that balance between independence and accountability rests is a decision based on a deliberate policy preference.

Our legislative framework does not provide any conclusive guidance on the matter.

Indeed, the Ginwala Enquiry noted that it seemed as if the Constitution envisaged that a convention would develop that delineated the relationship between the NDPP and the minister of justice.

Given the NPA’s short history, it is clear that such conventions have not emerged.

The ideal relationship envisaged is a collegial one, premised on trust and mutual respect.

It must promote an open exchange of information to strengthen the effectiveness of the criminal justice system and the rule of law, without the minister seeking to improperly interfere with the NDPP’s constitutionally guaranteed independence.

We have a long way to go to reach this utopia.

» Naidoo is the executive secretary of the Council for the Advancement of the South African Constitution

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