The NPA needs accountability to restore trust
Given the NPA's ongoing credibility crisis, is it time for a dedicated prosecutorial oversight and accountability mechanism for South Africa?
Prosecutors are the most powerful officials in South Africa’s criminal justice system. Their discretion – whether criminal charges should be brought and what those charges should be – affects the safety and security of all. Yet, in spite of the tremendous authority vested in the National Prosecuting Authority (NPA), there is no dedicated oversight and accountability mechanism to scrutinise its performance and strategic decisions.
Effective prosecutorial accountability empowers the public. In a democracy, the principle of accountability holds that state officials, including prosecutors, are responsible to the citizenry for their decisions and actions. This is especially important in a modern state like South Africa, where officials vested with considerable public authority routinely decide who to arrest, prosecute, convict or imprison; or to award contracts worth millions to some, but not others.
After a promising start, the NPA’s public credibility has been progressively undermined  |
Protecting the impartiality and independence of the prosecutorial function while ensuring democratic accountability is not an either/or proposition. Greater accountability serves to strengthen rather than weaken prosecutorial independence. The expectation that a prosecution service acts impartially logically implies some means of monitoring and ensuring such impartiality, which entails accountability to other institutional actors and the public.
South Africa’s first National Director of Public Prosecutions, Bulelani Ngcuka, told prosecutors they were ‘lawyers for the people’. After a promising start, the NPA’s public credibility has been progressively undermined through multiple changes in leadership, the failures of some of that leadership, and controversy surrounding the prosecution or non-prosecution of high-profile cases. The NPA is also riven by internal dissent, accused of prosecuting too few cases and has been criticised for losing a number of important cases.
Aspects of the NPA’s activities are scrutinised by various entities, including Parliament, the Auditor-General and the National Treasury. But none of these entities focus exclusively on the NPA and their staff – whose responsibilities and mandates extend well beyond those of the prosecution service, and who often lack focus and an intimate understanding of the role, function and performance of the NPA.
The NPA’s ongoing credibility crisis raises the question whether it is timely to explore a dedicated prosecutorial oversight and accountability mechanism for South Africa. Mechanisms such as prosecution service inspectorates, independent complaints offices and prosecutorial review commissions have been adopted elsewhere and can be looked at to guide meaningful debate in South Africa.
In England and Wales, the Crown Prosecution Service Inspectorate is aimed at improving the quality of justice through independently inspecting and assessing the Crown Prosecution Service (CPS). In so doing, the prosecution service’s efficiency is enhanced; as is public confidence in its work.
Annually the Inspectorate reviews a sample of the CPS’s casework from across all its geographic regions of operation. This includes examining the quality of prosecutorial decisions and case preparation, as well as victims’ and witnesses’ experiences of the criminal justice system.
The CPS thereby receives regular comprehensive reviews of its performance, including where improvement is needed or where poor performance represents a risk to the public or to the reputation of the prosecution service. Inspectorate reports also independently assess CPS management and operational issues.
The Inspectorate regularly produces reports on particular aspects of the CPS’s work, such as prosecution policy in respect of certain types of crime, or the use of resources. The attorney-general (a political position akin to South Africa’s justice minister) may refer matters to the Inspectorate to report on and to review high-profile cases.
A similar inspectorate in South Africa could provide independent and objective assurances to the public and other accountability bodies – such as Parliament and the Auditor-General – responsible for overseeing aspects of the NPA’s work.
If, as in England and Wales, a South African inspectorate were staffed with thematic experts – including previous senior prosecutorial staff – it would enjoy greater insight into the workings of the NPA than existing accountability mechanisms, with their broader mandates.
 In 2012, the unit was receiving more and more cases of prosecutorial misconduct |
Compared to parliamentarians or the Auditor-General’s office, inspectorate staff would have the luxury of focusing their energies and attention on one organisation only. This would allow them to appreciate the nuances involved in the prosecutorial process.
In Northern Ireland, an independent assessor of complaints – since replicated elsewhere – can investigate and determine whether complaints have been handled fairly, thoroughly and impartially by the territory’s prosecution service. The assessor’s office informs the prosecution service’s adoption of best practice in dealing with complaints. The office also helps to detect service delivery problems, and makes recommendations that have led to systemic improvements in the manner in which the prosecution service operates and deals with the public.
In Japan, lay advisory bodies – prosecutorial review commissions – can review prosecutorial decisions not to prosecute individual cases. Such commissions serve as a check on political and executive interference in the prosecution of high-ranking state officials, and political and business leaders.
The NPA has internal accountability mechanisms, such as an Integrity Management Unit (IMU). Their existence does little to reassure public confidence in the NPA’s institutional health and performance. In 2012, the acting head of the IMU at the time said the unit was receiving more and more cases of prosecutorial misconduct. Yet, according to the NPA’s 2012/13 annual report, only five out of the organisation’s almost 5 000 employees, or 0,1%, were dismissed as a result of misconduct over a year. This may be a sign of the NPA’s institutional health, the IMU’s good work, or an organisation unable to police itself and expel unethical employees. Barring an independent review, it is difficult to interpret these figures with any confidence.
Do such examples, and the general crisis besetting the NPA, call for an independent prosecution service inspectorate that can objectively scrutinise the NPA’s work while also providing constructive and informed advice to improve its performance? Or a complaints assessor, which could address public complaints about the NPA while concurrently working with the NPA to improve the latter’s service delivery? More drastically, might a system of prosecutorial review commissions, with restricted powers – so as not to undermine the prosecution service’s constitutionally mandated independence – merit consideration?
All these prosecutorial accountability and oversight mechanisms have been tested in the real world of criminal justice practice. Foreign experiences are not automatically a panacea for local problems. South African criminal justice reformers should take what is good and helpful from relevant international models and practices, but ensure they are grounded in the country’s local realities and context.
A serious debate is needed on the benefits and applicability of appropriate accountability and oversight mechanisms for the NPA. To do so, South Africa’s policymakers and criminal justice reformers should be aware of, and be able to draw from, international good practice and experience.
This is an edited version of an article that first appeared in Business Day.
Martin Schönteich, Senior Legal Officer, National Criminal Justice Reform Programme of the Open Society Justice Initiative
Martin Schönteich directs the Open Society Justice Initiative’s National Criminal Justice Reform Programme. He previously worked as a senior researcher for the Institute for Security Studies’ Crime and Justice Programme, and as a public prosecutor
