Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
21 October 2020

Why there is a real need to strengthen the independence of the NPA

In recent weeks the National Prosecuting Authority (NPA) finally began arresting and charging high profile, politically-connected, individuals allegedly involved in state-capture and other tender-related corruption. As a result, politically motivated attacks on the NPA (as well as on the Hawks) have intensified, presumably on the assumption that if you cannot refute the allegations of wrongdoing against you, the best way to defend yourself is to smear those pursuing justice. In this highly charged environment, strengthening the independence of the NPA by insulating it from attempts to interfere in its work, becomes imperative.

Earlier this month  National Director of Public Prosecutions (NDPP) Shamila Batohi told parliament’s portfolio committee on justice 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 raised concerns about this proposal, arguing that the NPA prosecutes on behalf of the government and cannot operate separate from it, and that it would become too powerful and unaccountable if it is administratively and financially independent from the department of justice.

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 on several occasions (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 were considerable confusion and disagreement about the nature of the NPA’s independence.

This confusion may have arisen because many democracies provide for political oversight 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 it should therefore have the ability to set priorities for the prosecution service to help it deliver on such an electoral promise.

Thus, in the USA the attorney- general (a political appointee serving in the cabinet  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 is compromised. This has recently happened in the US, as William Barr (Donald Trump’s attorney general) has shamelessly abused his position to try and protect Donald 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 the prosecutorial priorities of the NPA and remain informed about the NPA’s 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, while prohibiting 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 interfere with prosecutorial decisions. It merely allows the minister “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 suggest 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, while claiming that it is not interfering in the independence of the NPA, but merely ensuring that it uses its resources efficiently.

Considering the independence of chapter 9 institutions, the Constitutional Court confirmed the importance of safeguarding the institutional independence of bodies whose independence is guaranteed in the Constitution. Thus, in Independent Electoral Commission v Langeberg Municipality it 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. While These institutions are state institutions, they are independent from 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. This  underscores the fact that these bodies are independent from the government and government departments and not under its authority, nor accountable to it. 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 NA puts paid to the argument that the NPA will become all powerful because it will not be accountable to anyone if it is not accountable to the minister and DG of justice. The NPA, it must be said, is also accountable to the courts, who 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 to enhance its institutional independence 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 currently 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, leaving the process open to abuse. The President decides whether to start the process of removal of the NDPP and appoints an inquiry to kickstart 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 be entitled to decide that the NDPP is no longer a fit and proper person.

As the removal of Vusi Pikoli as NDPP illustrated, 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 to punish the NDPP for not toeing the party line. This can be done by using the threat of removal to place pressure on an NDPP or a Director to comply with unlawful “requests” or directives from the executive. The President and the majority party in the NA could also easily ensure that the NDPP is removed on vague and 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. (These are the elements who – in the coming months – are potentially facing arrest and prosecution by the NPA.) It is also not clear how serious the threat to the independence of the NPA currently is. But whether the power of the politically connected crooks is waning or not, the need to strengthen the institutional independence of the NPA remains urgent. After all, the political pressures to curb the independence of the NPA is only likely to increase as prosecutions are ramped up.

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