Court fixes some of the flaws in South Africa’s prosecuting authority

Former President Jacob Zuma: the Constitutional Court has ruled his appointment of the top prosecutor illegal. EPA-EFE/Jackie Clausen

South Africa’s Constitutional Court has ruled that the removal of the previous National Director of Public Prosecutions, Mxolisi Nxasana, by former President Jacob Zuma, was unlawful and invalid. The appointment of his successor, Shaun Abrahams, was therefore also invalid.

The National Prosecuting Authority is the body responsible for prosecuting criminal offences in South Africa. The Constitution requires it to do so

without fear, favour or prejudice.

In its judgment the Court explained why the National Prosecuting Authority must be independent:

The NPA plays a pivotal role in the administration of criminal justice. With a malleable, corrupt or dysfunctional prosecuting authority, many criminals – especially those holding positions of influence – will rarely, if ever, answer for their criminal deeds.

The judges went on to say that, equally, functionaries within that prosecuting authority may be pressured into pursuing prosecutions “to advance a political agenda”.

The Court noted that the prosecuting authority has suffered ongoing instability over the years. Its capacity to fulfil its core functions is increasingly in doubt. This has been illustrated in a number of ways.

The first is that the authority has been abused by powerful office holders – by the president in this particular case. In addition, it has failed to act in cases where strong evidence has been in the public domain. The prime example relates to the Gupta leaks. Also, the prosecuting authority has pursued baseless cases against opponents of people in power and is losing its effectiveness in prosecuting non-political cases.

The question now is: how much of this did Monday’s Constitutional Court judgment fix? It has removed some of the design flaws which allowed the authority to be abused and compromised. But it has merely opened the door towards other changes which may be necessary to ensure a functional, reliable and competent prosecutions body – changes which require the input of Parliament and broader society.

Independence and competence

An effective, accountable National Prosecuting Authority needs at least two things: structural independence and competent personnel with expertise and integrity.

Structural independence refers to the design of the institution, in particular whether the legislation that governs it is designed in a way that prevents those in power from forcing it to act in their own interests instead of in the interests of justice.

Two rulings from the Court’s recent judgment will improve the structural independence of the National Prosecuting Authority. First, it held that the clause allowing the President to extend the term of a National Director of Public Prosecutions was unconstitutional.

In addition, the court also declared Section 12(6) of the act invalid to the extent that it allows the President to suspend National Prosecuting Authority officials indefinitely and without pay. Instead, the Court limited the period of suspension to six months, and ordered that the suspended officials be paid during that period.

Weaknesses remain

But the judgment didn’t address other weaknesses. In particular, it left untouched the process of appointing its head. Under the National Prosecutions Act, the choice of the National Director of Public Prosecutions remains within the sole discretion of the President. The National Prosecutions Act does set out certain prerequisites, such as legal qualifications. The national head of prosecutions is also required to be a “fit and proper” person.

But the President is not required to consult with anybody on his choice or to justify his decision.

This explains why the removal of Abrahams hasn’t triggered widespread relief. Nobody knows – or has any say in – who will be appointed next.

Civil society has taken up this issue in the wake of a string of disastrous appointments. It’s suggesting that the head of the prosecutions authority should be chosen in an open, consultative manner.

The court provided no guidance on this. Nor did it tell South Africans what qualities the country’s chief prosecutor should have.

It consciously stopped short of commenting on Abrahams’s performance, noting merely that nothing had been brought to the court to suggest that he was not fit and proper to hold the post.

It was, nevertheless, not prepared to retain him in the position because he owed it to an abuse of power by Zuma. As the rule of law required a “cleansing” of the National Prosecuting Authority from all abuses of power, such a benefit could not be allowed to continue.

The only substantive guidance that the judgment offered on the qualities of the national director can be found in its response on what should happen to Nxasana. Although the judges were split on whether he should be allowed to return to his previous position, there was no dispute over the fact that he had allowed himself to be bought out of his office. In so doing he had acted in a way that was unworthy of the position he held.

A clean page

The court decision presents a clean page for the National Prosecuting Authority. It allows for the appointment of a new National Director of Public Prosecutions who might clean up the institution and return it to effective functioning. This, however, is far from a certainty.

The court’s judgment protects the independence of the new head of prosecutions and his or her deputies by removing some potential for fear, favour or prejudice. But it provides no guarantees that the new prosecutions boss and the National Prosecuting Authority will be impartial and competent and conduct themselves with integrity.

For that, further civil engagement and structural reform is needed.

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