EDITORIAL: NPA needs its independence made explicit
In the meantime, the prosecuting authority could and should act without fear, favour or prejudice
The National Prosecuting Authority’s (NPA) call to become independent from the justice department is a critical one and should be taken seriously.
The reason for wanting more independence is quite simple: over the past decade or so the institution, before it underwent leadership changes last year, was seen to be politically abused.
Retired Constitutional Court justice Yvonne Mokgoro and two co-panelists — who conducted an inquiry into two former senior prosecutors, Nomgcobo Jiba and Lawrence Mrwebi — wrote in the report released in 2019 that “the recent history of the NPA demonstrates that [it] may be vulnerable to executive and political interferences”.
The report indicated that, while the constitution, the NPA Act and other instruments provide for some measures that seek to safeguard the independence of the prosecuting authority, it is worth noting that it does not expressly use the word “independence” in relation to the NPA.
The report said the non-use of the word “independence” by the constitution is significant when one considers that the word is expressly used in reference to the judiciary and guardians of democracy, such as the public protector and auditor-general, established in terms of chapter 9 of the constitution.
The use of the word independent by the NPA is therefore not trivial.
The NPA wants to function more like a Chapter Nine institution and ensure it is also financially and administratively independent. The NPA also wants its own accounting officer and to report directly to parliament, according to spokesperson Sipho Ngwema.
He says it is inconsistent with the notion of independence if its budgetary process is subject to the control of the executive or the department, and if key staffing appointments of the NPA are subject to the approval of the department and a minister. Both are currently required.
“Hypothetically, if there were to be serious differences with regards to prosecutorial decisions taken by the NPA, those could be adversely affected because the executive can manipulate that process. This may dent and compromise the perception of independence of the NPA. The NPA can be rendered powerless. Independence must mean no undue influence or pressure,” Ngwema says.
Based on this worst-case scenario, it is clearly high time to review whether, given our recent history, it is still the best option to have a minister as a final authority over the institution, and to allow a department headed by a politician to effectively control the purse strings.
While it would be politically stupid to cut the NPA’s budget or to appoint incompetent people into high positions, the politics of today will not be the politics of tomorrow.
Although it should be the case now, when the political winds change again, the country will need the NPA to not only act without fear, favour or prejudice, but also independently. This should be spelt out explicitly and not just be based on the good faith that all politicians will act in the best interest of the country. History has shown us otherwise. We should also not forget that one swallow does not a summer make.
But modelling where it is placed, how it is funded and how it operates on Chapter Nine institutions, is no silver bullet either. These institutions also have budgetary issues, and all follow different funding processes.
The public protector, for instance, is allocated a budget through the justice department, which is also a long-standing issue; the auditor-general is funded through revenue earned from auditing the public sector. These institutions are also not above being seen as politically motivated, such as is the case with Public Protector Busisiwe Mkhwebane.
While the NPA thrashes out the details and tries push through these significant changes — which could take years to complete, if ever — there is one thing it can do in the meantime. It can prosecute without fear, favour or prejudice, and ensure that the NPA’s independence is implicit in all of its actions, even if the constitution does not yet make it explicit.
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