ISS Seminar, Report: Assessing the National Prosecuting Authority (NPA) - Complexities and Possibilities
Speakers
- Acting
National Director of Public Prosecutions, Advocate Nomgcobo Jiba
- Civil
Society Prison Reform Initiative (CSPRI), Community Law Centre, University of
the Western Cape, Ms Jean Redpath
- Doctoral
Student, Criminal Justice Programme, City University of New York (CUNY), Mr Martin Schoenteich
Chair
- Head
of the Crime & Justice Programme, ISS, Mr
Gareth Newham
The National
Prosecuting Authority (NPA) is pivotal to the criminal justice system and the
consolidation of the rule of law in South Africa’s democracy. Research
undertaken by the Institute for Security Studies (ISS) found that a central
challenge facing the NPA has been the systemic tendency to decline to prosecute
criminal cases, which has not been a consequence of either a lack of resources
or an overburdening workload. As a result there has been a decline in the
number of verdicts and persons sentenced to prison.
This seminar
aimed to provide participants with the opportunity to hear directly from the
Acting National Director of Public Prosecutions (NDPP) about initiatives
underway to improve the performance of the NPA. This is in response to the ISS’
research findings on the performance of the NPA and the challenges and
possibilities facing the NPA in the international context.
In her remarks, Acting
National Director of Public Prosecutions Advocate Nomgcobo Jiba emphasised
that the NPA was solidly committed to ensuring that justice prevailed without
fear, favour or prejudice and she expressed confidence in the abilities of the
men and women working for the organisation.
Adv. Jiba said that she was
acutely aware that there had been widespread criticism of the NPA, particularly
concerning those high-profile cases where decisions had been taken not to
prosecute certain individuals. She stated that she could not defend the
decisions taken by her predecessors, but wanted the public to know that prosecutors
did not take decisions arbitrarily but were informed by a clear set of
guidelines, and decisions were subject to review by senior personnel in the
organisation. Adv. Jiba also acknowledged that indeed there were challenges in
the performance indicators used by the NPA. She said that work was being done
through the Justice, Crime Prevention and Security Cluster to align the
indicators of the various actors in the criminal justice system so as to ensure
that the indicators enabled the pursuit of a common purpose. She added that it
was important to place the work of the NPA in context, considering that there
are a large number of activities such as bail hearings that have increased
substantially, and that they make decisions on each of the many hundreds of
thousands of cases that are received each year. For this reason, the NPA does
not only focus on conviction rates but also uses a ‘basket of indicators’ to
measure performance.
Ms Jean Redpath took the
audience through some of the key findings of her research, commissioned by the ISS
into the performance of the NPA, which was based on historical data produced by
the organisation. These findings were published in a monograph titled Failing to prosecute? An assessment of the
state of the National Prosecuting Authority in South Africa, available at
http://www.issafrica.org/pgcontent.php?UID=31594. Ms Redpath acknowledged that
measuring the performance of the NPA was not as clear-cut as it may appear. It
has been argued that the number of convictions, that is the number of
successful prosecutions in relation to the number of crimes reported yearly to
the police, is seen as the most sensible way of measuring the performance of
the criminal justice system as a whole.
However, because the NPA is established specifically to prosecute
people, it has tended to emphasise conviction rate, which is established by
calculating the number of cases convicted as measured against the number of
cases finalised (i.e. that is with a verdict in court in a year.) She
highlighted that there was a common perception that high workloads would
undermine the performance of prosecutors. However, her analysis using average
provincial case flows demonstrated that the higher the workload, the better the
performance. In addition, performance was deteriorating while resources were
increasing. A key challenge was that there was an overbearing focus on using
the conviction rate to measure performance. This is reflected in the conviction
rate of around 90%, compared to conviction rate of the Crown Prosecuting
Service in London, which is between 60% and 70%. This was possibly because
prosecutors were declining to prosecute cases unless they had a strong chance
of success. Existing policies made it too easy to decline to prosecute, and
should be changed so that more cases were processed. This would lead to better
results for both victims who wanted their cases dealt with and suspects, many
of whom were incarcerated while waiting trial.
Mr Martin Schoenteich brought
an international lens to the debate and stated that there was very little theoretical,
academic, political or practical discussion about the meaning of prosecutorial
independence. In most Western European countries the institutional dependence
of prosecutors on the executive branch is the accepted status quo. At the same
time, recognition of the problems related to prosecutorial dependence upon the
executive branch is growing, and there is a trend towards increasing the
independence of prosecution services from the executive; this is especially
evident in the transitional democracies of Central Europe and Latin America. The
experience of the countries surveyed shows that no particular model of
independence and accountability is necessary. One of the core comparative
lessons is that different constitutional, institutional and functional
structures must be considered comprehensively, not in isolation, to understand
their operation and effects in a given social and political context. A single
element in isolation – or introduced in a reform, for example – may have very
different effects if the totality of relevant, interrelated elements is not in
place as well. There is no single model for a prosecution service, and each must be
evaluated in context. Many configurations are consistent with international
standards; the choice among them is political and constitutional. Recognising
the availability of various models does not imply a casual approach to reform,
but rather deliberation about the interrelatedness of different design
elements, which must be evaluated in their full historical, social and
political context. He noted that there were many prosecutors in
the NPA doing a stellar job and it was therefore critical for the entity to
urgently address leadership issues and to publicly enter into a phase of
transformation informed by a transparent process. This would definitely
reinvigorate the NPA, bring back much-needed pride among those working in the
organisation, and instil public confidence and trust in a crucial institution
in the South African criminal justice system.
This seminar was funded by the Hanns Seidel Foundation.