- 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
- 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 â€˜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 ââ‚¬â€œ or introduced in a reform, for example ââ‚¬â€œ 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.
Name: Millicent Mlaba
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