DAVID LEWIS: Business needs to carefully consider where it gets its policy advice

Conclusions without evidence are simply opinions, based usually on more or less casual observation. They may be widely held opinions, and they may stimulate the interest of researchers, but they should not be confused with conclusions based on rigorous research. 

The Centre for Development and Enterprise (CDE) confuses the two in its recently published paper on the National Prosecuting Authority (NPA). The NPA is a regular whipping boy of the public, the media and the chattering classes. It’s a critically important institution and bound to generate controversy, especially in a country beleaguered by violent crime, gender-based violence, serious corruption, community corruption (“petty” corruption) and organised crime.   

The prosecuting authority leads the penultimate step in the law enforcement process. Its evidence and arguments persuade the courts to punish or acquit an accused person. For these reasons, the NPA is subject to an unusual degree of public scrutiny, by those members of the public who wish to see perpetrators of serious crimes punished and by those criminals who wish to escape an unwelcome judgment by the courts. 

There is thus a proliferation of firmly held public opinion on the performance and leadership of the NPA. But just as the NPA must produce rigorous evidence for the courts, so it behoves reputable and influential organisations to base their conclusions and policy recommendations on the prosecutorial agency on careful research, and not merely public opinion. The CDE has failed to exercise this responsibility.

I should be clear at the outset: I agree that we have serious weaknesses in our criminal justice system, starting with the department of justice & constitutional development, through to the SA Police Service (SAPS) and key specialised units such as the Hawks and crime intelligence, the NPA, the courts and the prison system. Identifying where the key weaknesses lie in this chain is a major, complex research undertaking, not a casual confirmation of dinner table chatter. 

There is no end of definitive judgments in the CDE’s slim paper, “Energise the NPA” (the title already asks the reader to believe that the NPA lacks energy), part of a series of papers specifically couched as advice to the new ministers of the government of national unity (GNU). The paragraph summing up the findings of the CDE researchers is particularly damning: 

“The NPA’s performance has been disappointing, undermining law enforcement and accountability in a society where the rule of law is hanging by its fingernails. The causes ... are varied and interlocking. Weak leadership, lack of political support, possible reluctance to prosecute powerful people, as well as a lack of capacity and inadequate structures.”

Evidence, please 

The report is littered with references to “widespread dissatisfaction with the NPA’s performance”. We are told that “the disappointing performance of the NPA has encouraged impunity among criminals”, that it has “failed to deter the spread of corruption”, that its attempts to prosecute corruption are “slow and erratic”. The report points to the NPA’s “apparent failure to execute on prosecutions arising from the Zondo state capture report or those forensic reports that require minimal further investigation and should have been relatively easy to prosecute”.

But search for evidence in support of these far-reaching conclusions and you will be disappointed. How is the performance of the NPA to be measured? The most one can glean from the report is that the NPA’s performance is found wanting when the frequency of successful prosecution of corruption is put against the volume of information provided by the Zondo commission and other commissions of inquiry and forensic reports. 

Legal opinion is divided as to the extent the evidence before various commissions eases successful prosecution (though it may help if the full record of the Zondo commission were made available to the NPA, which the CDE report acknowledges has been blocked by the department of justice despite the NPA’s entreaties). But more than this, I would vouch that any country exposed to the exhaustive public ventilating of corruption through public commissions of inquiry as in SA would, on this metric, be judged to have a failing prosecutorial authority.

On this point, the CDE doesn’t appear to have undertaken any research on international comparative experiences. I doubt whether the NPA would fall far behind most other countries on the extent of prosecution of corruption and the time taken to mount successful prosecutions.

Credit due

“Weak leadership” is clearly in the CDE’s gun sights, but also with little supporting evidence. For example, I can think of no criticism of a prosecutorial authority’s leadership more damning than the CDE’s speculation of a “possible reluctance to prosecute powerful people”. Off the top of my head, I recall that a former parliamentary speaker is on trial, as are at least two former ANC MPs and party leaders, a former ANC secretary-general, a former police commissioner, a number of high-ranking police officers, several former senior executives of state-owned enterprises, business figures complicit in these alleged crimes, and one former state president. Not too shabby for a prosecuting authority that is “reluctant to prosecute powerful people”.

A curious aspect of the policy brief is that it identifies several factors that weaken prosecution that are not within the NPA’s power to overcome. “Stalingrad tactics” are deployed by defendants, not the NPA, and are accepted by judges; insufficient resourcing can only be overcome by the government; using private practitioners to provide mentoring and advice on selected trials provides marginal relief at best, and is not without its own complications; criminal investigation was, until recently, in the hands of the Hawks and the SAPS.

There is no acknowledgment at all that the NPA is one element of a complex community of law enforcement institutions. It is consequently no easy matter to attribute outcomes to any one of the number of agencies that resource the criminal justice system and investigate, prosecute and adjudicate crimes. 

No mention is made of the volume of cases each prosecutor is required to handle, or to compare this with international peers, nor of the surging incidence of violent crimes that compete with white-collar crimes for the attention of the criminal justice authorities. No word of the vexed relationship between the NPA and the department of justice.

As is well known, the NPA’s accounting officer is the director-general of the department, which controls its budget and key elements of expenditure, including hiring and salary levels. No other agency within the broad law enforcement community has its accounting officer located in another agency, perhaps the greatest impediment to a successful rebuilding of the NPA. Indeed, rather than mount an investigation of the NPA — the principal recommendation of the CDE paper — it may be more productive to investigate the department of justice. 

Far more could be said. But perhaps all that needs be added is that in compiling this advisory to the government, no-one from the CDE bothered to approach the leadership of the NPA. Nor is mention made of the extensive data and analysis furnished by the NPA in its numerous engagements with the public in its annual report, in parliament and the media. This is a downright irresponsible basis on which to base far-reaching policy advice. 

The CDE doesn’t present itself as a mere purveyor of opinion. It styles itself “an independent policy research and advocacy group (which) is SA’s leading development think-tank”. It’s treated as such by the media and by powerful, influential people, particularly those in the business community.

As is well known, the business community is now deeply engaged in policy development and, unusually, in policy implementation. Under the present circumstances this is a positive development. However, if business’s source of information and analysis is the “research” of the CDE, its paper on the NPA should give pause for serious thought.

• Lewis, a former trade unionist, academic, policymaker, regulator and company board member, was a co-founder and director of Corruption Watch.