By Paul Hoffman

The NPA is run as a programme within the Department of Justice and the director general of that department, who is not even a member of the NPA, is its official accounting officer. These features of the NPA architecture, either singly or taken together, are not the stuff of which independence is made.

There is a myth in the media and even among some politicians that the National Prosecuting Authority (NPA) is an independent constitutionally created body that has a mandate to prosecute all crime including corruption. While it is so that the mandate exists, the independence of the NPA does not.

Here’s why:

Section 179 of the Constitution stipulates that national legislation must ensure that the prosecuting authority exercises its functions “without fear, favour or prejudice”. While these criteria fall short of true independence of action, no such national legislation has ever been passed in terms that ensure the independence of the NPA. Under section 32 of the NPA Act all that is required is the following:

“32: Impartiality of, and oath or affirmation by members of prosecuting authority: 

“(1) (a) A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law. 

“(b) Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.”

The oath or affirmation required of each member of the prosecuting authority does not take the matter any further on the topic of independence.

There is a reason for this omission. Section 179(6) makes it clear that the furthest thing from the minds of the founders of the Constitution was an independent NPA. It specifies that “the Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority”.

Note the choice of preposition; not responsibility “for” the NPA — responsibility “over” the NPA is the constitutional order of the day.

Under Section 179(5) any doubt about who is in charge is removed. The Cabinet member concerned must concur in the prosecution policy that the National Director of Public Prosecutions (NDPP) determines.

To add insult to injury, the NPA is run as a programme within the Department of Justice and the director general of that department, who is not even a member of the NPA, is its official accounting officer.

These features of the NPA architecture, either singly or taken together, are not the stuff of which independence is made.

Corruption eruption

The proof of the pudding is in the eating. When the Thabo Mbeki administration decided it needed to act against the rising tide of corruption in the 1990s, it set up the Scorpions as a legislated unit within the NPA, not as a stand-alone independent body.

This was the undoing of the Scorpions whose efforts to act independently of executive influence and interference led to their demise. They were a creature of an ordinary statute and could be dissolved at the instance of a simple majority in Parliament.

When they looked into the arms deals, Travelgate and other early manifestations of corruption, they earned the ire of senior ANC politicians.

The decision to prosecute police chief Jackie Selebi led to the suspension of NDPP Vusi Pikoli because both the responsible Cabinet minister and the then-president wanted to protect Selebi on the flimsiest of grounds. Selebi was investigated by the Scorpions, prosecuted after he lost the protection of the Mbeki Cabinet, and was found guilty of corruption after a trial run by former Scorpions led by Gerrie Nel SC.

When Pikoli decided to charge Jacob Zuma with corruption he was dismissed, illegally so. He sued and won a R16-million damages settlement that also gave him a clean bill of health. He advises a Cabinet minister today. His experience is a salutary lesson to his successors, one which Mxolisi Nxasana did not take when he indicated his willingness to prosecute Jacob Zuma and was eased out of office, illegally so again, for doing so.

Zuma could not stomach the prospect of facing the trial now scheduled to begin in April 2025, some 20 years after Schabir Shaik was convicted and sentenced for corrupting Zuma in the same transactions that will form the subject matter of the upcoming trial in which French arms company Thales features as the second accused.

Read more in Daily Maverick: Thales — how to buy a country

Indeed, no NDPP has ever seen out the 10-year term of office, a single non-renewable term, that is accorded to those appointed to that high office by the president. Even the appointment process does not lend itself to a suitably independent person cracking the presidential nod. Cyril Ramaphosa tacitly recognised this flaw and consulted widely, but informally, before appointing current NDPP, Shamila Batohi.

Into this omnishambles comes the bright light and clear thought of the Constitutional Court. The cases that occasioned the attention of our highest court were the trilogy of Glenister cases that are discussed in the compilation of essays called “Under the Swinging Arch”. The mischief addressed in the Glenister cases is the inadequacy of the anti-corruption machinery of State set up post the demise of the Scorpions.

The court accepted two of the arguments put up by Glenister and by the Helen Suzman Foundation in the litigation. It very properly regarded corruption as a human rights issue and it placed reliance upon the treaty obligations shouldered by government in treaties dealing with the scourge of corruption. These treaties invariably set out an obligation to maintain independent anti-corruption machinery of state in order “effectively and efficiently” to contain and eventually eradicate corruption.

These two criteria are part of section 195(1) of the Constitution, a section which has become something of a dead letter during the period of ANC dominance and should come into its own in the seventh Parliament if it takes constitutionalism seriously.

Showing due deference to the role of Parliament in making the law, the court did not dictate the form of the remedial legislation it ordered Parliament to pass. Instead, it called for the reasonable decision of a reasonable decision-maker in the circumstances. What would constitute reasonable measures to do so is discussed in detail on page 289 of “Under the Swinging Arch” with reliance on the unanimous decision of the Constitutional Court in the Rail Commuters case.

The court also set the criteria by which to judge the new unit it ordered. These have become known as the Stirs criteria (see Under the Swinging Arch page 288) and it is now plain that the system set up in response to these criteria has not been either effective or efficient. This much is acknowledged by the recent adoption of the Investigating Directorate Against Corruption (Idac) amendments to the NPA Act. These amendments do not pass constitutional muster, as has been explained in detail to Parliament, to no avail.

Locating supposedly independent corruption-busters within the palpably non-independent NPA is a non-starter for securing the independence the law requires and has required since 2011 when the second Glenister case was decided.

Most opposition parties in the old sixth Parliament recognise that this proposition is unassailable and support the idea of creating a Chapter Nine anti-corruption entity as proposed by the DA in legislation it intends to table within 100 days of the seventh Parliament commencing its work.

Even the NEC of the ANC has let it be known that it favours a stand-alone, specialist body that enjoys independent status to deal with serious corruption and organised crime. Cabinet, instead of complying with the instructions given it by the NEC, has conjured up Idac, an unconstitutional and limping response to a pressing need. Corruption is at the root of much of the dysfunction in service delivery in SA; it fuels patronage and kleptocracy and ought to be regarded as intolerable by those who govern in the seventh Parliament.

A major plank of any GNU that is negotiated in the days to come should include the “how to” of “ending corruption” as the president put it when he announced the willingness of the ANC to form a GNU to among other things “end corruption”. DM