Restoring the Independence of the Prosecutorial Authority in South Africa
The National Association of Democratic Lawyers (NADEL) congratulates the National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi on her appointment to office.
The appointment came in the wake of a judgment by the Constitutional Court on 13 August 2018 directing that a new NDPP be appointed.
In this instance, for the first time in South African democracy the President convened a panel consisting of Mr. TK Makwetu of the Attorney General, Advocate B Roux of the General Council of the Bar, Mr. R Scott of the Law Society of South Africa, Advocate L Manye of Advocates for Transformation, Mr. LB Sigogo President of the Black Lawyers Association and Mr. Mvuzo Notyesi the President of NADEL, to conduct interviews for the position. This ensured that the process was transparent, accountable and responsive to the current political climate in South Africa.
The appointment of the NDPP has always been the sole prerogative of the President in terms of Section 179(1) of the Constitution. There is nothing in the Constitution or the National Prosecuting Act 32 of 1998 that actually precludes the President from appointing a National Director that would make decisions in his political favour when making prosecutorial decisions. Therefore, the President is commended for engaging in such a process that lends credence to the decision making process in the appointment of the NDPP.
Advocate Batohi’s appointment comes at a time where there is a desperate need to restore public faith in the National Prosecuting Authority (NPA). The NPA is a pillar of the democratic state and its proper functioning is critical for the South African justice system and the rule of law. Fundamentally the NPA must be independent from any external influence, manipulation and pressure in order for it to carry out its functions without fear, favour or prejudice.
Its proper functioning is also directly related to the proper functioning of the South African judiciary. The very first time that the issue of the President’s prerogative to appoint the NDPP was considered was in the Certification Judgment where the court found that the National Prosecuting Authority was not part of the judiciary when it was deciding if such an appointment vitiated the doctrine of separation of powers. However, it is argued by scholars that the judiciary was therein short sighted: “the Constitutional Court failed to see that the sui generis nature of the NPA as a tributary which if polluted by executive interference, pollutes the judiciary an ocean into which it flows.” (Monene, 2010 University of Limpopo).
Reflecting upon the judgment of S v Yengeni 2006 the court stated:
“[t]he independence of the judiciary is directly related to and depends upon the independence of the legal profession and of the NDPP. Undermining the freedom from outside influence would lead the entire legal process including the functioning of the judiciary, being held hostage to those interests that might be threatened by a fearless, committed and independent search for the truth.”
It is therefore important for us to pause to consider if we have created a legal-political climate that is conducive for the proper functioning of the prosecutorial office and if not, what steps should be taken to ensure that the integrity of that office is restored. It cannot be wholly dependent on the newly appointed NDPP to carry this burden, solely.
We have seen the office of the National Prosecuting authority being subverted through political interference.
There has been a litany of cases brought against the National Prosecuting Authority from the 2009 case of Zuma v National Director of Public Prosecutions (2009), National Director of Public Prosecutions v Zuma 2009 at the Supreme Court of Appeal and Freedom Under Law v National Director of Public Prosecutions (2014) are but few in a long list.
In the case of Zuma v National Director of Public Prosecutions (2009) we witnessed as a country as the process of judicial review of a prosecutorial decision, painted the NPA as a toothless institution subject to political manoeuvring by high powered government officials, an institution that could not fulfil its constitutional obligations. This judgement although overturned by the Supreme Court of Appeal as being unsound in law had by then already left a stain on the office of the NPA.
In addition to considering the way our courts have handled these issues it also becomes necessary to reflect upon the empowering legislation National Prosecuting Act 32 of 1998 to ensure that it is drafted in a manner that allows independence from executive authority.
In this regard some scholars are of the view that the Act itself does not entrench the prosecutorial independence as set out in the Constitution and of particular concern is section 32(1)(b) of the act that states: “Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person may improperly interfere with, hinder or obstruct the prosecuting authority…” We must then ask if there are instances when interference in a prosecutorial decision can be proper and why that is so?
Section 33 of the NPA act sets out that the Minister shall exercise final responsibility over the prosecuting authority for the purposes of Section 179 of the Constitution and in accordance with the Act. This exercise in accountability is set out in subsection 2 of this section.
This section (Section 33) is contained in the Act despite that the NPA is also directly accountable to parliament in terms of Section 35 of the NPA Act. Should the NPA be subjected to the executive authority of a Minister when it is already accountable to parliament? Are these provisions conducive to the NPA meeting its constitutional obligations without interference?
We live in an epoch where corruption is one of the three (3) greatest problems in developing and underdeveloped states, along with poverty and unemployment. Corruption undermines all institutions of democracy and erodes principles of democracy and the rule of law. It fuels maladministration of state resources and diminishes that capacity of the state. There is a dire need for us to return to a culture of accountability. In order for us to do that we must empower these important democratic state institutions with the tools required to carry out their functions.
NADEL therefore encourages further debate and engagement on these open-ended questions that require responsive answers from the legal profession and society in general. Such debates are required in order for us to restore faith in our democracy and a return to the rule of law and especially to assist in the restoration of the integrity and the independence of the National Prosecuting Authority.
ISSUED ON BEHALF OF THE NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS (NADEL), SOUTH AFRICA.
Statement by Ugeshnee Naicker,
Office of the National Secretariat,
National Deputy Secretary .
National Association of Democratic Lawyers (NADEL).
11 FEBRUARY 2019