Efforts to secure the NPA's operational and financial independence have stalled, exposing the justice system to bureaucratic bottlenecks and executive interference.
For decades, repeated attempts have been made to strengthen the South African National Prosecuting Authority's (NPA) independence. Will the new Government of National Unity succeed where previous administrations faltered?
Prosecutorial independence is more than an abstract legal concept - it is fundamental to the integrity of a fair justice system. Without it, prosecutorial decisions can be swayed by political or personal interests, turning the law into a tool for the powerful. When this happens, corruption flourishes and public trust wanes, leading to widespread lawlessness - conditions all too familiar in South Africa.
Globally, prosecutorial independence is a widely recognised standard. The United Nations' Guidelines on the Role of Prosecutors (1990) and the International Association of Prosecutors' Standards of Professional Responsibility (1999) both stress that prosecutors must be free from political influence to serve justice effectively.
The Jakarta Statement on Principles for Anti-Corruption Agencies and the accompanying Colombo Commentary highlight the importance of financial autonomy for bodies like the NPA. Without control over their budgets and personnel decisions, these institutions are vulnerable to manipulation and control by external forces.
South Africa's recent history is a powerful reminder of the dangers posed by a compromised prosecutorial system. The state capture era exposed the devastating consequences of executive interference in prosecutorial decisions. As key government institutions were undermined, the NPA struggled to hold those responsible for corruption to account, and to prosecute crime generally.
The importance of prosecutorial independence is most obvious in the fight against graft. Political or 'grand' corruption, affects entire institutions and societies, crippling governance and economic wellbeing. When unchecked, corruption siphons off resources meant to improve public services that are vital for development like healthcare, education and essential infrastructure.
South Africa's Constitution and the NPA's founding legislation dictate that the prosecuting authority must exercise its functions 'without fear, favour or prejudice.' These protections should shield the NPA from interference, but political meddling has repeatedly undermined its ability to function impartially.
Attempts to prevent the prosecution of high-profile figures such as former police commissioner Jackie Selebi and former president Jacob Zuma were ultimately thwarted by an independent judiciary and civil society efforts. However, the state capture period showed that these victories were far from sufficient. The Selebi matter led to the dismissal of then National Director of Public Prosecutions (NDPP) Vusi Pikoli in 2009, and Zuma's corruption trial still isn't underway.
Despite constitutional and legislative protections, the NPA's relationship with the executive - specifically its financial and administrative dependence - has left it exposed to interference.
The NPA's funding arrangement is a crucial factor undermining its independence. Rather than receiving its budget directly from Parliament, the NPA relies on the justice department, with the department's director-general acting as the accounting officer for the NPA's budget. This creates a structural weakness, as the NPA's financial wellbeing depends on another government entity.
The justice department's director-general also controls many of the NPA's human resources decisions, including key appointments, promotions and creating essential posts. While some powers have been delegated to the NPA, these can be unilaterally revoked, compromising the prosecutorial authority's operational independence.
This setup contradicts international standards. Both the Jakarta Principles and the Colombo Commentary emphasise the need for financial and operational autonomy in prosecutorial bodies.
Another major obstacle is the executive's power over key NPA appointments. The president appoints the NDPP, deputy national directors and provincial heads. The justice minister has the final say over appointing hundreds of Deputy Directors of Public Prosecutions - positions that wield significant authority. The justice minister can also veto the NPA's requests for external expertise, such as forensic accountants, making it hard for the NPA to nimbly pursue complex cases.
At best, this system creates bureaucratic bottlenecks and uncertainty for the NPA's leadership. At worst, it gives the executive undue power to obstruct or undermine prosecutorial efforts, particularly when investigations threaten political elites. Either way, the NPA's ability to function independently is seriously compromised.
Unbridled prosecutorial independence is not a cure-all. As a public institution, the NPA must balance independence with accountability. Prosecutors should not be free from lawful oversight or immune to checks on their conduct. The NPA has made significant strides in this regard, launching an Office for Ethics and Accountability to promote integrity and good governance.
The NPA regularly briefs Parliament and civil society on its performance and use of public funds. Moreover, the justice minister has statutory authority to exercise 'final responsibility' over the NPA, albeit not regarding decisions to prosecute or not to prosecute, which are made by the national and provincial directors of prosecutions.
Yet, while progress has been made in terms of accountability, reforms around independence have stalled.
Since 2002, the Office of the Auditor-General has called for the NPA's financial independence. In his 2011 budget speech, then justice minister Jeff Radebe announced planned legislation to 'delink' the NPA from the justice department. For 15 years, numerous bills on strengthening the NPA's operational independence have been drafted, but none have reached Parliament.
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Following the Zondo state capture commission's 2022 recommendations, President Cyril Ramaphosa pledged to introduce reforms that would enhance transparency in the appointment of the NDPP and address the NPA's financial and administrative independence. Yet, in November 2023, the Portfolio Committee on Justice and Correctional Services expressed frustration over the lack of progress, urging the justice minister to introduce legislation by January 2025.
The commitments have been made. The president, justice ministry and Parliament all recognise the need to strengthen the NPA's independence. The Zondo Commission underscores the critical importance of an independent prosecuting authority in preventing future state capture.
It is time for action. South Africa's new government has the opportunity to do what previous administrations could not - secure the NPA's financial and operational independence, free from executive control. The future of the justice system and the country's democracy depends on it.
On 15 October, Martin Schönteich and NDPP Adv Shamila Batohi will be in discussion with Ferial Haffajee on the importance of prosecutorial independence. Register here
Martin Schönteich, ISS Consultant and former prosecutor
