Should the NPA move away from the Department of Justice?
The National Prosecuting Authority falls within the ambit of the Department of Justice but there have been fresh calls to treat is as a chapter 9 institution, like the Public Protector.
Adv Shamila Batohi addressing members of the media at the Union Buildings, Pretoria, 04/12/2018. Picture: Jairus Mmutle / GCIS
Would granting the National Prosecuting Authority more autonomy, outside of the Department of Justice be an effective means of promoting independence?
Well, if there’s one thing we’ve learned in South Africa is that if there’s anything to be gained, a way of gaining it will be carved out of anything.
In other words, if the desire for anything is strong enough, there isn’t a set of laws one can fathom to avoid it getting got.
What does this mean then? It means that while we can accept that nothing is impossible, we also need to admit that if something is inconvenient enough, people are less likely to go for it.
So, about this proposal to move the NPA to a more “independent” position… What is to be gained?
Well, it may look more independent, and I’m pretty sure there’s some short term value in that but otherwise, if the move doesn’t come with substantial changes to how the body operates, a simple move out of the authority of a government department hardly means much.
One need only look at the legislation.
In terms of the National Prosecuting Authority Act, the President picks the director and deputy directors, but that’s not all. The Constitution provides that cabinet members responsible for the administration of justice must exercise final responsibility over the prosecuting authority.
I guess we could go on to fight about the meaning of “responsibility” in context, but really what all this means is that should the NPA want to effect substantial change to the oversight of their structure, we’d need not only legislative change, but probably Constitutional change too.
Then there’s this small matter of the existing Chapter 9 institutions.
Take a look at our Public Protector. We seemed to love the previous occupant of the seat but this new one… Naaah!
The structure of the position is important, sure, but whoever occupies it can find a way to fly the plane in a direction that pleases.
So which directions are so turbulent under the Department of Justice that the NPA would benefit from new traffic controllers?
It’s difficult to say, because the fix is almost assuredly not going to be fulfilled by merely moving the NPA from one “boss” to another.
The idea, I suspect, is to eliminate the idea of a “boss” above the Director of the NPA entirely.
Perhaps this could be accomplished by shifting the NPA from the executive authority to the legislative authority, and having parliament make the calls on issues such as budget.
Perhaps the shift will also give more long term wiggle room to act, since the wheels of parliament grind significantly slower than those of executive offices.
These are all potentially good things if you’re willing to ignore a small body of 6, which forms part of a body of 80, which together drive both parliamentary and executive policy and practices.
It’s all good and well to try and evade capture of state resources and push for independence. This is especially important now, as the Zondo Commission takes return fire and is accused of delving into the political arena as an actor.
It’s just a problem when you make your move and in reality very little changes.
What changes, other than trading in one umbrella for another, will be made? We’ll have to wait and see but it’s going to have to be a lot more than that to improve independence.
As a bystander by and large, it seems that there’s still trust in the NPA. If there wasn’t, we’d finally be seeing a trend of private prosecutions.
I can’t imagine wanting to make a significant move with so many other things on the table, unless one is facing political pressure. So, the reportedly internal desire does freak me out a little but also give me hope that, at least for now, there is a team at the helm committed to doing good things in the interests of justice.
I can however, imagine a situation where this is merely window dressing and if it is for independence, it’s going to need stacks more than moving shop.
Maybe it’s a step in making external influence over the NPA so inconvenient that politicians think about it and give up immediately, which could probably be accomplished too by leaking bribery attempts to Gerrie Nel.
Richard Anthony Chemaly entertainment attorney, radio broadcaster and lecturer of communication ethics.
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