The law has struggled to create the independence necessary for prosecutors to pursue charges against prominent members of the executive.
South Africa isn’t alone in this.
South Africa’s National Prosecuting Authority has been embroiled in an almost decade-long battle over the prosecution of President Jacob Zuma on 783 charges that include fraud, racketeering and corruption.
The charges are related to controversial post-apartheid arms deal.
Why has the prosecuting authority failed to prosecute? The reason is that the law has struggled to create the independence necessary for prosecutors to pursue charges against prominent members of the executive. South Africa isn’t alone in this. The US has struggled too.
The real problem is that political pressure can get in the way of prosecution. Members of the executive, including the president, can interfere with the head of the prosecuting authority – the National Director of Public Prosecutions. Two examples stand out: the case brought against South Africa’s former police commissioner Jackie Selebi which eventually resulted in a trial and a prison sentence. The second is the Zuma arms deal case.
My suggestion is to establish a separate special prosecuting office that deals only with political cases – that is, those involving members of the executive and the legislature. The usefulness of a special prosecutor was stress tested in 1973 during the US President Richard Nixon debacle. The purpose is to create a greater measure of independence, although the Nixon case also showed that it can be subject to political interference. He had three removed.
Watergate nevertheless illustrated why a separate prosecuting capacity targeting the executive arm of government is important.
But how would a special prosecutor be appointed in South Africa? There are various options. It could, for example, be left to the Chief Justice or Parliament to decide when a matter demands the appointment of a special prosecutor.
A system like this wouldn’t completely remove the potential for interference, but it would ensure it was minimised. It would also free the director from being embroiled in political battles, enabling them to concentrate on their core job which should be to increase the overall effectiveness of the prosecuting authority as well as public confidence in its abilities.
Room for political interference
In South Africa the efficacy of the entire criminal justice system rests on the ability of the prosecuting authority to do its job properly. This is because it enjoys a monopoly over the prosecution of crime. The constitution mandates it to be the gatekeeper – it alone decides which criminal cases go to trial.
Every year the prosecuting authority receives hundreds of thousands of cases prepared by the South African police service. The bulk of them are ordinary offences, like murder, robbery and assault committed by ordinary people against other ordinary people. Very few involve prominent state officials.
The prosecuting authority does receive cases against members of the executive. But the number of political cases are a drop in the ocean compared to ordinary cases. They nevertheless risk derailing the proper and effective functioning of the prosecuting authority.
In reality, the prosecuting authority is only quasi-independent. This is for two reasons.
The first is that the language describing the independence of the prosecuting authority in the Constitution isn’t very clear.
In terms of the constitution, the Minister of Justice and Constitutional Development has final responsibility over the prosecuting authority. Case law has held that the minister can’t instruct the prosecuting authority to prosecute or not, but is entitled to be kept informed about cases that the public might be interested in or that involve important aspects of legal authority.
Despite this innocuous clarification, ministerial oversight leaves open a gap for interference.
The other major flaw in South Africa’s system is that there’s room for political interference in the way in which the director is appointed. The director is appointed by the president. The president can make the decision without any consultation.
The director is the embodiment of the institutional independence of the prosecuting authority and the incumbent is meant to play an executive role rather than a political one. The director is responsible for determining prosecution directives and prosecution policy. He or she may intervene in decisions to prosecute and may review decisions to prosecute – or not to prosecute – after consulting with provincial directors of public prosecutions.
But given that the president appoints the director, the prosecuting authority is in a difficult position. To perform its functions effectively, it must assert an independence it doesn’t enjoy.
Interference with the director
The office of the director has been the subject of controversy over the past 18 years, with the appointment and subsequent removal of four directors. Some of this controversy has centred on whether the prosecuting authority would, or wouldn’t, prosecute certain political cases. Vusi Pikoli was removed by then President Thabo Mbeki for prosecuting Jackie Selebi.
The fact that these types of cases are within the purview of the director provides grounds for political interference over the office. This interferes with its overall performance.
So far the debate about increasing the independence of the director has centred on how the appointment is made, and how an incumbent can be removed. One suggestion has been that a properly constituted committee made up of different stakeholders does the interviews and shortlists candidates. On the removal of an incumbent, there’s been a suggestion that the president’s right to suspend a director without consultation is removed.
Bolstering the appointment and removal procedures are important and should be done. But it’s not enough to focus on the individual director. South Africa needs to remove the incentive for political interference over the director. That’s the only way the efficacy of the prosecuting authority can be enhanced.