Is the NPA truly independent or under executive control?: Paul Hoffman

Key topics:NPA lacks constitutional independence, only impartialityCourt demands anti-corruption body outside executive controlNew bills propose independent Chapter Nine anti-corruption body.Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox every morning on weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..By Paul Hoffman*.All too often it is assumed that the common legal phrase “without fear, favour or prejudice”, as it is used in the SA Constitution, is merely a synonym for “independence” and that those enjoined to act without fear favour or prejudice are required to act independently, no more and no less.It is suggested that the phrase as used on the National Prosecuting Authority is no more than an operational requirement for impartiality which has nothing to do with the structural, or indeed operational, independence of that beleaguered body.In January 2012 the late Chief Justice Arthur Chaskalson delivered a speech at the launch of the Administrative Justice Association, in which he pointed out:“Administrative law has developed out of the rule of law which is one of the founding values of our Constitution. Its purpose is to uphold legality and promote fairness, accountability and transparency in government. These are basic values of good public administration, and it is the role of the courts in a democracy to ensure as far as possible that they are respected. If this does not happen the door to corruption is opened and nothing could pose a greater risk to the transformation demanded by our Constitution than that. That is why democratic governments comply with court orders even if they disagree with them, and why our Constitution demands that organs of state assist and protect the courts to ensure their independence, impartiality, dignity and accessibility.”The learned Chief Justice draws a distinction between independence and impartiality in relation to the functions of the judiciary by referring to them separately, rightly so..Read more:.Cholota judgment exposes NPA as politicised and morally bankrupt: Thabo Mandila.The phrase “without fear, favour or prejudice” is used in the Constitution itself with reference to the judiciary and the Chapter Nine Institutions, as well as to the prosecution authority itself.As regards the judiciary, the words used in Section 165 are:“The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”Clearly impartiality and independence are not synonymous in this formulation.As regards the Chapter Nine institutions, the wording in Section 181(2) is:“These institutions are independent, and subjection only to the Constitution and the law, and they must be impartial and must exercise their functions without fear, favour or prejudice.”Once again independence and impartiality are regarded as separate and distinct features that these institutions are required to display.When it comes to the features of the National Prosecuting Authority the position is different:Section 179(4) states that:“National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.”There is no reference to independence, and, to the extent that there may be a difference between exercising functions impartially or “without fear, favour or prejudice” (which could be a wordy phrase for “impartiality”) there is nevertheless no independence requirement for the NPA in the section. It is fanciful to imagine that the NPA is a sufficiently independent body to properly acquit itself of the task of “dealing with corruption effectively”, as the court put it in Glenister Two.On the contrary, other sections of the Constitution point away from independence for the NPA.Section 179(6) states that:“The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.”This unsubtle form of executive control over the NPA is exacerbated by the role of the minister in prosecution policy-making.Section 179(5) requires the concurrence of the minister in “prosecution policy which must be observed in the prosecution process.” In effect, this provision gives the minister veto rights over the formulation of prosecution policy. The provision is a further feature of our supreme law that points away from the notion of independence for the NPA.All 14 of the most senior appointments in the NPA are the responsibility of the President.The Director General of Justice is the accounting officer of the NPA and accordingly controls its purse strings.The NPA itself is operated as a programme within the department of justice. Not independently.Section 179(7) removes all doubt about independence when it specifies that:“All other matters concerning the prosecuting authority must be determined by national legislation.”Within the commentariat and the halls of power in SA, there is a common assumption that the “without fear, favour or prejudice” formula for the NPA is an indicator of independence. At best, it is suggested, the formulation in Section 179(4) is an indicator of impartiality in prosecution work, no more and no less. The hard truth is that the NPA is not constitutionally designed to enjoy independence at all.This conclusion assumes significance when examining the instruction given to parliament by the court to cure the constitutional defect in the initial Hawks legislation to render the anti-corruption machinery of state constitutionally compliant by repairing its failure “to secure an adequate degree of independence for the Hawks”. The order came in the joint majority judgment of Deputy Chief Justice Moseneke and Justice Cameron in the case now known as “Glenister Two”.What is meant by the phrase “an adequate degree of independence” in the order issued by the court can be gleaned from the judgment itself. After examining the duty of the state to respect, protect, promote and fulfil the human rights guaranteed to all in the Bill of Rights (surely unattainable in a corruption-riven society) as well as the international obligations of the state in respect of establishing and maintaining independent anti-corruption machinery of state, the court reached the following conclusion in paragraph 200 of its judgment:“As we have already pointed out, corruption in the polity corrodes the rights to equality, human dignity, freedom, security of the person and various socio-economic rights. That corrosion necessarily triggers the duties s7(2) imposes on the State. We have also noted that it is open to the State in fulfilling those duties to choose how best to combat corruption. That choice must withstand constitutional scrutiny. And, even leaving to one side for a moment the Republic’s international-law obligations, we consider that the scheme of our Constitution points to the cardinal need for an independent entity to combat corruption. [50] Even without international law, these legal institutions and provisions point to a manifest conclusion. It is that, on a common-sense approach, our law demands a body outside executive control to deal effectively with corruption.”The rationale for reaching this conclusion is spelt out in paragraph 166 of the judgment:“The need and rationale for combating corruption[166] There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the State to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”It follows that SA should not be in a position in which a body which is not outside executive control is required to fulfil the anti-corruption requirements of the Constitution as interpreted by the apex court.Corruption is a sophisticated and secretive form of crime. Often its victims are blithely unaware that a serious crime has been committed against them. Before Glenister Two, the Constitution required of the NPA that it prosecute all crime. The prevention, detection, investigation and combating of all crime was the function of the police in the pre-Glenister era.The law has undergone a sea change. Cases of corruption are the work of a body outside executive control, which body, at present, does not exist.Now that the Constitution has been interpreted, by the apex court in a final appeal, to mean that our law demands “body outside executive control” to deal with corruption, it is incumbent on the government, and in particular parliament, to create such a body because no such body can be found, despite the binding nature of the judgment quoted from above.The parlous position in which the leadership of the NPA finds itself is akin to the situation in corporate structures in which an all-powerful holding company (national cabinet) holds sway over its wholly owned subsidiary (the NPA) by giving powers of appointment to its head (the president), powers of veto on all policy matters to a member of the main board of the holding company (the minister of justice) and control of the purse strings of the NPA to a person who is not even a member of the NPA (the director general of justice). The emasculation of the leadership of the NPA is apparent from this formulation of the limitations placed upon its ability to act independently. Small wonder that all but one of the NDPPs have failed to last the full term of their ten-year tenure. The exception is Shamila Batohi, who could only serve seven years before being disqualified from continuing due to her age. Her successor can, if the law is not changed, look forward to less than three years in charge of the NPA..Read more:.Justice in crisis: DA MP Glynnis Breytenbach slams NPA dysfunction, proposes bold reforms to end delays and political meddling.Fortunately, the current situation is not all gloom and doom. Two private members bills, piloted by Glynnis Breytenbach MP, are in the works in parliament. The bills envisage the establishment and enablement of a new Chapter Nine Anti-Corruption body which ticks all the boxes created in Glenister Two. Not a moment too soon..*Paul Hoffman SC, a native of Johannesburg and a Wits graduate, practised law at the side bar from 1975 to 1980 and at the Cape Bar from 1980 to 2006. He took silk in 1995 and acted on the Cape Bench at the invitation of three successive judges president. After retiring from the Bar, he was founding director of the Centre for Constitutional Rights and co-founder, in 2009, of Accountability Now, both NGOs that promote constitutionalism. He is best known for his work on the irregularities in the arms deals, on the unconstitutionality of the Hawks and on the bread cartel case in which a general class action was developed by the courts. Yoga and long dog-walks on the beaches and mountains around his home in Noordhoek help keep him inspired to seek that elusive better life for all. He is the author of many articles and two books, Confronting the Corrupt, and Countering the Corrupt..This article was first published by Daily Friend and is republished with permission.

Is the NPA truly independent or under executive control?: Paul Hoffman

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