Human Rights Committee
Submission on the National Prosecuting Authority Bill [B 113 - 97]

1. Introduction
Before the passage of the Attorney-General Act 92 of 1992, the office of the Attorneys-General was tainted by perceptions that it was subject to political manipulation and was regarded as a tool of oppression in the apartheid system. Since the passage of the 1992 Act, which recreated the office as a politically independent structure, the legitimacy of the office of the Attorneys-General has been challenged by unchecked independence. It has been alleged for example, that despite the existence of sufficient evidence to warrant a prosecution, some Attorneys- General have failed to institute prosecutions and that such decisions have been politically motivated. Furthermore, the credibility of the prosecutorial office and the popularity of the government have been challenged by the government’s inability to ensure that its policies regarding crime are reflected by the prosecuting authority.

The problems associated with the prosecuting authority have taken on a new dimension since the democratic era began in 1994 and several key issues have come to the fore:

There is a challenge to ensure that the prosecuting authority is politically independent.

While in the past, crimes of a political nature were usually connected to apartheid atrocities and were thus easily identifiable, in the future, the ambit of "politically related" crimes is likely to be less clear-cut and thus the need for safeguards is imperative.

There is a need to ensure that the prosecuting authority is properly equipped to perform its role in addressing the current crime wave.

In this regard, the need for the prosecuting authority to be structured and run in such a way that prosecutions are conducted successfully and quickly is crucial. In addition, there is a need to bolster the legitimacy of the office in the eyes of the public so that the public can be assured that prosecutions are being managed properly and effectively. The need for a professional, adequately resourced and well-skilled prosecutions system should thus be a priority for government.

The prosecuting authority needs to be equipped to take on the challenge of prosecutions arising from the apartheid era.

The relationship between the prosecution authority and the Truth Commission process is therefore important.

Lastly, the prosecuting authority needs to be equipped to protect and uphold the Constitution and the fundamental rights entrenched therein.

This points to a need for human rights training for all staff in the prosecuting authority and a corresponding commitment in the prosecution policy.

The introduction of the National Prosecuting Authority Bill provides an opportunity to meet these challenges and to restore public confidence in the criminal justice system in a way that is appropriate in the South African context. The comments that follow are made with a view to ensuring that the bill fulfils these imperatives.

It is useful to begin with the concepts that underlie the bill, namely, independence, political responsibility and accountability.

Recognition of the need for the office to be independent is found in the Constitution which states that "[n]ational legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice"1. Independence of the office is crucial to ensure that prosecution decisions are not manipulated by improper political considerations.

In our past, the prosecuting authority has, in many instances, been used as a shield for "transgressors in high places". It is important to ensure that in the future, no-one is above the Constitution and the Law and for this reason, the independence of the prosecuting authority should be guaranteed in the bill and made a reality in practice. The bill’s provisions relating to appointment criteria and procedures, tenure of office, dismissal procedures and conditions of service are particularly relevant in this regard.

Political responsibility
The Constitution provides that "the Cabinet Minister responsible for the administration of justice must exercise final responsibility over the prosecuting authority"2. The bill deals with this issue in sections 21 and 22, establishing extensive reporting mechanisms aimed at ensuring that the Minister of Justice can fulfil this constitutional mandate as final accounting officer.

Democratic accountability
Democratic accountability should be distinguished from political responsibility. Democratic accountability concerns the checks and balances which should be put in place in relation to the exercise of power both by the Prosecuting Authority and the Executive. Mechanisms for reporting to Parliament and public access to reports are essential, as are the channels open to aggrieved members of the public to lay complaints and to challenge decisions made by the Prosecuting Authority.

2. Appointment

2.1 National Director
The power to appoint the National Director bears a critical relation to ensuring the independence of the office. The way in which the appointment procedure is prescribed will impact on how the functions of the office are carried out and thus ultimately on public confidence in the office.

2.1.1 Appointment Procedure
Section 8 of the bill provides that the National Director shall be appointed in terms of section 179(1) (a) of the Constitution. Section 179 (1) (a) specifies that the National Director is appointed by the President, as head of the national executive.

HRC’s comment
Until now, the executive branch of government has had exclusive power to appoint attorneys-general. The problems that this has posed in our past demand that in the future, the executive should not have the ability to use the power of appointment to ensure political control of the prosecuting authority.

An inclusive selection process involving all three branches of government and the public will go a long way to ensuring that the office of the National Director is insulated against improper political pressure.

This can be achieved by establishing a panel, consisting of government and civil society representatives, to make recommendations to the President, and by ensuring that the appointment process is open and transparent. This would be in line with the government’s commitment to openness and transparency and consistent with the precedent established by the appointment procedures used for the TRC , Electoral Commission and the Judiciary.

It has been argued that the prosecuting authority is an executive function and therefore the appointment of its office bearers should fall solely within the domain of the executive. The predominant view of commentators and constitutional experts is that the function is a mixture of judicial and executive functions, making it either a quasi-judicial or sui generis state body. The quasi-judicial nature of the office is a compelling reason why the appointment process should provide for the involvement of the judiciary.

The National Director will be responsible for instituting criminal prosecutions, and in some cases this will require him or her to institute criminal prosecutions against members of the State. It is thus important that the National Director has sufficient distance from the executive in order to ensure that such prosecutions are taken without fear or favour.

Appointment procedures used in South Africa pre 1994
Attorneys-General Act 1992

Under the present Act, the formal power of appointment vests in the President and he/she is not obliged by statute to consult with anyone. According to a submission made by Nadel to the Constitutional Assembly in 1995, in practice, it appears that the Director-General of Justice consults with all the serving attorneys-general and the Commission for Administration in order to obtain proposals for candidates. A name is then submitted to the Minister of Justice, who obtains the approval of Cabinet. The formal appointment is then done by the President.

There is no statutory obligation to advertise the search and the selection process or to involve Parliament or the public.

Appointment procedures used in SA post 1994

Although there was no constitutional or statutory obligation on the President to consult with anyone prior to the appointment of the Commissioners, the President announced that a multi-sectoral selection panel would be used. This panel received 299 CVs, interviewed 46 applicants and presented a short list of 25 to the President. He then appointed 17 Commissioners. The interviews were held in public and the public were afforded opportunity to comment on the short listed candidates. The whole process took approximately two and a half months.

Human Rights Commission
The procedure for the appointment of Commissioners is stipulated in the Constitution: The President shall appoint the Commissioners on the recommendation of the National Assembly. The National Assembly must recommend persons nominated by a committee of the Assembly proportionately composed of members of all parties represented in the National Assembly.

Gender Commission
Section 3(3) of the Gender Commission Act provides that " before the members of the Commission are appointed, the Minister [of Justice] shall invite interested parties through the media and by notice in the Gazette to propose candidates within 30 days of the publication of said notice, for consideration by the [joint] committee."

Procedures used in other countries

The Attorney General and Deputy Attorney Generals are appointed by the President with the advice and consent of the Senate.

The Zimbabwean Constitution3 specifies that the Attorney-General is appointed by the President, after consulting the Judicial Services Commission.

The Judicial Service Commission consists of the Chief Justice, the serving Attorney General, the Chairperson of the Public Service Association and three persons nominated by the President.

The President is not obliged to follow the views of the Commission, and the public plays no role in the selection process. There is also no statutory obligation to advertise the position or publicise the search. The Zimbabwean Attorney-General has been criticised for his proximity to the executive and a resulting lack of prosecutions against persons in high places, despite the existence of sufficient evidence to institute prosecutions.4

The Prosecutor-General is appointed by the President on the recommendation of the Judicial Services Commission. The JSC consists of the Chief Justice, a judge appointed by the President, the Attorney-General and two nominated members of the legal profession.

The procedure prescribed for the appointment of the Prosecutor-General places the office in the same category as judges and the ombudsman.

The Federal Minister of Justice proposes the Federal Public Prosecutor General and the Federal Attorneys. The approval of the Upper House of Parliament is needed before the Federal President makes the formal appointment.

There are various ways to introduce an intermediary step into the appointment process. We have listed options below for your scrutiny and then indicated which one we would favour.

Option 1
President appoints on recommendation of a selection panel composed of representatives from civil society and government.

option 1(a) : President appoints the candidate recommended by the panel.
option 1(b) : President appoints form a short list recommended by the panel.
option 1(c): Panel recommends a shortlist of 3 to the Justice Portfolio committee which subsequently recommends a candidate to the President.
option 1(d): Panel recommends a shortlist of 5 to the Justice portfolio committee which subsequently recommends a shortlist of 3 to the President, who makes the final appointment.

As far as the composition of the panel is concerned, if options (1) (a) or (b) are used, the panel should be composed of government and civil society representatives.

If options (1) (c ) or (d) are used, it will be important to ensure that the selection panel is not dominated by members from the executive or legislature. There should thus be more representatives from human rights institutions and civil society.

Note: There is a precedent for the use of option 1( c) or (d) in the Electoral Commission Act.

Option 2
President appoints on recommendation of the Prosecuting Authority Commission

Again the options (a) to (d) under (1) could be used.

Composition of the Prosecuting Authority Commission: The bill could specify that the Commission have the same composition as the Judicial Service Commission.

[Thereby circumventing section 178 (5) of the Constitution which provides that: "The Judicial Service Commission may advise the national government on any matter relating to the judiciary or the administration of justice, but when it considers any matter except the appointment of a judge, it must sit without the members designated in terms of subsection (1) (h) and (i). Subsection (1) prescribes the composition of the JSC and (h) and (i) prescribe that there shall be ten members of Parliament on the JSC. ]

Option 3
The President appoints on recommendation of the JSC

The same options outlined under 1 (a) to (d) could be used here. Note however, section 178 (5) which specifies that when the JSC advises the government on any matter except the appointment of a judge, it must sit without the designated members of the Legislature.

Option 4
President appoints on recommendation of the Justice portfolio committee

The Justice portfolio committee would be required to conduct the short - listing, interviewing and selection process.

Option 5
President appoints with advice and consent of the National Assembly.

In effect, this would mean "on the advice of the Justice portfolio committee as conveyed to the National Assembly".

Note: The words "on recommendation of the JSC" allow the President to deviate, but such deviation being out of the ordinary will attract media attention and be debated in Parliament and the press. On the other hand, if one wants to ensure that the President is not bound to one candidate, but is given options, then the recommendation of a shortlist would be the appropriate procedure to use.

HRC’s recommendation
We recommend the use of a multi-sectoral panel which is politically independent and which represents a range of interests from civil society and the three branches of government.

We propose the following composition:

• a person nominated by the Human Rights Commission
• the Public Protector or a person nominated by the Public Protector
• a person nominated by the Gender Commission
• a representative from the Ministry of Justice
• the President of the Constitutional Court
• the Chief Justice
• a member of the Justice portfolio committee, nominated by the committee

We consider it important that the human rights institutions are represented on the panel as they deal day to day with the prosecuting authority specifically in relation to the marginalised sectors of society such as rural women, the homeless, prisoners, refugees and children.

Our motivation for a representative from the Gender Commission in particular lies in the fact that women and children are by far the largest group of crime victims. There is a need for this issue to be taken up during the interviews of candidates, and to ensure that gender representivity in the prosecuting authority is on the agenda during the selection process. (According to an April 1997 Attorney General Public Hearing Report, only three of the 50 top positions in the Attorney’s-General offices are filled by women).

The panel should recommend a shortlist of 3 to the President for final appointment.

Lastly, whichever process is adopted, there should be procedures set in place to ensure that the process is conducted in an open and transparent manner which provides for real public participation. Public participation can be ensured by the body calling for nominations from the public; conducting the short listing process, interviews and deliberations in public; and by giving the public sufficient notice and time to lodge objections.

We would suggest that the following steps be prescribed in the bill:

There should be a well advertised call for nominations or applications from the public, giving at least two weeks for nominations to be submitted.

After nominations have been received, names should be published so that objections can be lodged.

The selection body should then shortlist the nominations and interview the candidates in public.

Deliberations after the interviews should also be held in public.

The selection body shall then submit its recommended shortlist or candidate to the President who will make the final appointment.

2.1.2 Criteria
Section 8 of the bill lays down two criteria for the office of National Director:

• "Any appropriately qualified, fit and proper person may be appointed as National Director"
• "Any person to be appointed in terms of subsection (1) shall be a South African citizen."

HRC’s comment
It is our submission that the criteria prescribed in the bill are too broad. Circumscribed criteria, germane to the function of the office, should be set out in the bill to guide the exercise of the appointment discretion. Such criteria would serve both to prevent selection solely on the basis of political allegiance and to ensure that the person appointed is appropriately qualified.

The words " any appropriately qualified, fit and proper person" are very broad and whether or not a person is appropriately qualified will lie within the President’s subjective discretion and his/her decision will not be subject to review.

Whereas if the bill were to prescribe that the appointee must have been concerned in the application of the law for a continuous period of 10 years, should the President appoint someone without such experience, his/her decision could be challenged and overturned.

The need for the candidate to be appropriately qualified
In the light of the fact that the National Director will be responsible for:

setting down prosecution policy,
issuing policy directives,
reviewing individual prosecutors decisions,
advising the Minister on all criminal matters and
making recommendations to the Minister with regard to the administration of justice as a whole,
there is a need for such a person to be adequately experienced in criminal law matters.

The need for the candidate to have right of appearance in the High Court
Section 10(1)(b) gives the National Director the power to prosecute on behalf of the state in a court of law. This would require him or her to have right of appearance in the High Court, i.e., he or she would have to have been admitted to practise as an advocate or an attorney.

The need for the National director to lead the provincial Directors
The bill specifies stricter criteria for the positions of a provincial or extra Director:

the right to appear in the High Court
has been concerned in the application of the law for a continuous period of at least 10 years after his or her admission to practise as an advocate or attorney; and
possesses such experience as, in the opinion of the President, renders him or her suitable for appointment as Director.

Previous drafts of the bill
Previous drafts of the bill laid down three requirements for the National Director:

• the right to appear in the High Court;
• has been concerned in the application of the law for a continuous period of at least 10 years after his or her admission to practice as an advocate or attorney; and
• possesses such experience as, in the opinion of the President, renders him or her suitable for appointment as the National Director.

Somewhere between the fourth departmental draft and the tabled bill, these criteria were removed. The reasons for removing them are not clear, but a perception of them being removed in order to pave the way for a political appointment cannot be avoided.

Criteria used in 1992 AG Act

• admitted to practise as an advocate
• concerned in the application of the law for a continuous period of ten years after admission
• possesses such experience, as in opinion of President, would render him suitable for appointment as Attorney General.

Criteria used for Commissioners of Human Rights Institutions

The Constitution and enabling legislation contained no criteria for the Commissioners, however, the President announced the following as the criteria to be followed in the selection process:

• impartiality
• moral integrity
• known commitment to human rights, reconciliation and disclosure of the truth
• absence of a high party political profile
• lack of intention to apply for amnesty

Public Protector
The Constitution requires that the Public Protector be a South African citizen who is a fit and proper person to hold the office of Public Protector.
The Public Protector Act lays down the following extra criteria:

• a judge of the Supreme Court; or
• a person who is qualified to be admitted as an advocate and who has for 10 years either practised as an advocate or an attorney or lectured in law at a university, or
• a person who has specialised knowledge of or experience for a period of at least 10 years in the administration of justice, public administration or public finance.

Gender Commission
The Gender Commission Act specifies that the Commissioners shall;

• have a record of commitment to the promotion of gender equality, and
• be persons with applicable knowledge or experience with regard to matters connected with the objects of the Commission.

Criteria used in other countries
The attorney general should be qualified for appointment as a judge of the High Court.

The attorney general must be a person qualified to be appointed as a judge.

• possesses legal qualifications that would entitle one to practice in all the courts of Namibia.
• by virtue of his or her experience, conscientiousness and integrity; a fit and proper person to be entrusted with the responsibilities of the office of Prosecutor-General

United Kingdom
The Director of Public Prosecutions is required to be a barrister or soliciter of not less than ten years standing.

The Director of Public Prosecutions must have experience as a legal practitioner for not less than 5 years.

HRC’s recommendation
We suggest the following criteria:

• right of appearance in the High Court
• 10 years or more experience in the application of law within the criminal justice system, or specialised knowledge of or experience for a period of at least 10 years in the administration of criminal justice, or ten years experience of lecturing in criminal law at a university.
• integrity and impartiality
• absence of a high party political profile

If the committee decides against specifying criteria in the bill, we would suggest that criteria be published by the selection body.

Furthermore, if the committee decides not to include the "absence of a high party political profile" requirement, we submit that the bill should provide that upon appointment, the appointee should resign from any party or political office which he or she holds.

2.2 Directors

2.2.1 Appointment procedure
The bill provides that the President shall appoint the provincial Directors, may appoint two or three Directors at the Office of the National Director, and may appoint one or more Directors to exercise certain powers, carry out certain duties and perform certain functions (to be specified by the President).

HRC’s comment
Again, while it is appropriate for the President to exercise the formal power to appoint the Directors, we would recommend that a prior procedure should take place with respect to their appointment, as in the case of the National Director. It is equally important that Directors are seen to be politically independent and an all inclusive, transparent and open appointment process would ensure this.

It is particularly important that the section 12(1)(d) Directors are seen to be independent, given that they might be assigned to politically sensitive cases or be in charge of national priority crime prosecutions.

The fourth draft of the bill contained a provision specifying that the President shall make the appointments "in consultation with the Judicial Services Commission". It was removed somewhere between the fourth departmental draft (early October 1997) and the tabled bill (late October 1997). The motivation behind its removal is not clear.

HRC’s recommendation
We recommend that the process outlined above for the appointment of the National Director should also apply to the appointment of Directors.

2.2.2 Criteria
The bill specifies the following criteria for qualification as a Director:

• the right to appear in the High Court;
• has been concerned in the application of the law for a continuous period of at least 10 years after his or her admission to practise as an advocate or attorney; and
• possesses such experience as, in the opinion of the President, renders him or her suitable for appointment as Director.

HRC’s comment and recommendation
Section 179(3) (a) says that "[n]ational legislation must ensure that the Directors of Public Prosecutions are appropriately qualified". In the light of this imperative, we would like to make the following comments.

The first two criteria are germane to the functions of the office and we would support their retention.

We recommend the addition of a fourth criteria; namely that the appointees should neither hold a high party political office nor have high party political profiles. Or alternatively that they vacate such office upon appointment as a Director.

3. Terms of office

3.1 National Director

3.1.1 Tenure
Section 9(1) provides the President with the discretion to determine the length of the term of office of the National Director upon the date of appointment , subject only to a maximum of 7 years.

HRC’s comment
The reason for giving the President this discretion is not clear, however, the provision impacts negatively on the independence - real and perceived - of the office. As it stands, it would allow the President to appoint the National Director for a one year term, in order to give government the option of dismissing the National Director after a year, without having to go through the procedures set down in the legislation for dismissal. This is highly problematic and open to abuse.

Similar offices in South Africa
According to the Constitution, a Constitutional Court judge is appointed for a non-renewable term of 12 years. Other judges hold office until they are discharged from active service in terms of an Act of Parliament.

Public Protector
The Constitution provides that the "Public Protector is appointed for a non-renewable period of seven years".

Other countries
The Constitution specifies that the Attorney General has security of tenure. S/he stays in office until retirement which is at the age of 65 years. 5

HRC’s recommendation
We recommend that the time period be set in the bill at 7 years.

3.1.2 Re-appointment
Section 9(2) of the bill provides that the National Director may be re-appointed for one additional term.

HRC’s comment
Where there is a possibility that a term may be renewed, the potential for an incumbent to act independently is reduced: The option of re-appointment could effect a National Director’s ability to act without fear or favour as required by the Constitution. In practical terms, the National Director would be less inclined to institute politically unpopular prosecutions in order to gain favour with the executive in view of an expected re-appointment. On the other hand, there is a need for continuity of office and re-appointment may reward good efficient performance.

Similar offices
Public Protector
The Public Protector is appointed for a non-renewable term of seven years6. The ratio behind providing for one term only is to protect the independence of the office.

Constitutional Court judges are appointed for a non-renewable term of 12 years.

HRC’s recommendation
We recommend that the term of office be non-renewable.

In the alternative, we recommend that the decision to re-appoint be made on the recommendation of a politically independent body such as the Judicial Service Commission or a multi-sectoral panel. The body should hold hearings prior to the re-appointment to allow interested parties to make representations regarding any objections to the re-appointment.

3.1.3 Grounds for suspension and removal
The power to suspend or remove incumbents from office is as critical to the independence of the prosecuting authority as the power to make appointments. In order to further secure the propriety of any removal, it is crucial that clear and narrow grounds for dismissal are identified.

Section 9(6) lists the only grounds which can be relied upon for the suspension or removal of the National Director:

• for misconduct
• on account of continued ill health; or
• on account of incapacity to carry out his or her duties of office efficiently

HRC’s comment
We are concerned about the wording of the third ground which provides for removal "on account of incapacity to carry out his or her duties of office efficiently". It is submitted that lack of capacity to act efficiently is both too broad and too narrow a concept. It is too narrow because incapacity to act efficiently is but one among any number of incapacities that might be pertinent to the question of removal. It is too broad because efficiency is a nebulous term and capacity for efficiency is even more nebulous.

HRC’s recommendation
The third ground should be redrafted to read "on account of being incapable of performing the duties of his or her office."

3.1.4 Procedure for suspension and removal
The bill prescribes two separate procedures for suspending/removing a National Director. However, at all times, such suspension or removal has to be based on the criteria stated above.

Procedure one
The President may suspend the National Director. The suspension, the reasons therefore and the representations of the National Director (if any) shall be communicated to Parliament within 14 days after such suspension (when Parliament is in session).

Within 30 days of the tabling of the message of suspension, or as soon thereafter as is reasonably possible, Parliament must pass a resolution recommending the retention or removal of the National Director.

The President is obliged to re-instate or remove the National Director, depending on the decision made by Parliament.

Procedure two
The President is obliged to remove the National Director from office if s/he receives a prayer for such removal from each of the respective Houses of Parliament in the same session.

HRC’s comment and recommendations
While we support the two procedures outlined above, we recommend that any resolution or prayer by Parliament for the removal of a National director should require a threshold majority of two thirds. The independence of the National Director could be threatened if s/he can be dismissed by a simple majority.

Furthermore, we recommend that a body be appointed to hold hearings on the suspension of a National Director. Such may be the Justice Portfolio Committee or the JSC. There should be an opportunity for the National Director to make representations and challenge allegations made against him/her and an opportunity for members of the public to adduce evidence of misconduct, continued ill-health or incapacity.

3.2 Directors

3.2.1 Tenure, re-appointment, and grounds for suspension and
The concerns and recommendations noted above under National Director are applicable here as well.

3.2.2 Procedure for suspension and removal
Section 13(3) of the bill specifies that the "provisions of section 9(3), (4), (6) (a) and (e), (7), (8) and (9), in respect of the vacation of office and discharge of the National director shall apply, with the necessary changes, with regard to the vacation of office and discharge of a Director".

Section 13(3), specifies that section 9(6)(a) and (e) shall apply, not 9(6)(a) to (e), thus giving the President the power to suspend and/or remove a Director from office without the involvement of Parliament.

HRC’s comment
The power to suspend or remove a Director from office is critical to the independence of the office. It would be prejudicial to the independence of the Directors if the power to suspend and remove them from office lay solely with the President.

HRC’s recommendation
We recommend that the section be re-drafted to read section "9(6)(a) to (e)", thereby ensuring that Parliament’s approval is required for the removal of a Director.

Furthermore, hearings should be held prior to the suspension or removal of a Director. Such hearings should be held in public and an opportunity should be provided for the Director concerned to make representations and for the public to make submissions. The hearings could be held before the Justice portfolio committee, Judicial Services Commission or another body.

4. Powers, duties and functions

4.1 The Prosecuting Authority generally

The Power to institute and discontinue criminal prosecutions
According to section 4 of the bill, the power to institute and discontinue criminal proceedings vests in the prosecuting authority. This power ultimately rests with the National Director as head of the Prosecuting Authority. However, on a daily basis, decisions to institute and discontinue prosecutions will be made by Directors and prosecutors. Only if a complaint is raised or if the case is a particularly sensitive one will the National Director intervene and make the decision.

In South Africa, as in the UK, Canada, USA and Zimbabwe, the Prosecuting Authority is not obliged to prosecute every case that is brought to its attention. This principle is called the principle of open discretion. In terms of the principle, the Prosecuting Authority has open discretion to decide whether to prosecute or not, even where there is sufficient evidence for a conviction. The overriding question which guides this discretion, is whether a prosecution will be in the public interest. Thus an AG may decline to prosecute an old person or a juvenile. The AG may also decide to withdraw a prosecution against an accused person in exchange for that person turning state witness and helping the prosecuting authority to secure a conviction against another accused who poses a more serious threat to society than the first accused.

During the second reading debate of the Attorney-General Bill of 1992, the then Minister of Justice had the following to say regarding the open discretion:

"The maintaining of justice by means of criminal law is and therefore remains to a great extent dependent on the way in which an Attorney General exercises his discretion in connection with prosecutions. A moment’s thought makes one realise that an AG’s position of power is far- reaching - in fact more far reaching than that of the court in so far as the exercising of his powers is not circumscribed by laws and in fact virtually everything, as has already been stated by the courts, is left to his unimpeded discretion."

The latitude of the discretion is also summed up in the words of Percy Yutar, referred to in the speech;

"As far as I am personally concerned, my guiding star is in my conscience and if my conscience is clear and I can sleep peacefully at night, then I have done my duty."

In the light of this wide discretion and the quasi-judicial nature of the decisions which a prosecutor is required to make, the use of guidelines to assist prosecutors in the exercising of their discretion is a growing international trend. The UN has promulgated a set of model guidelines for prosecutors. These UN Guidelines are referred to in the bill: Section 10 (1) (j) specifies that the "National Director shall bring the United Nations Guidelines on the Role of Prosecutors to the attention of the directors and prosecutors and promote their respect for and compliance with the above mentioned principles within the framework of national legislation".

HRC’s comment
Although the public interest discretion may be necessary as outlined in the above three instances, it has been abused in the past and is open to abuse in the future. Furthermore, when exercised in high profile cases, it often leads to a lack of trust in and respect for the prosecuting authority.

HRC’s recommendation
The discretion to institute or discontinue prosecutions should not be exercised without clear guidelines and without efficient mechanisms ensuring accountability to Parliament and the public.

As prosecutors will be vested with the day to day power of deciding whether to prosecute in a particular case, it is important that they are provided with guidelines to assist them in exercising their discretion fairly and uniformly.

We support the inclusion of section 10 (1) (j), but we would recommend that the section expressly state that guidelines must be drafted and issued to each Director and prosecutor.

In this context we would particularly like to highlight article 17 of the UN Guidelines.

Article 17
"In countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecution process, including institution or waiver of prosecution."

While the bill provides for the drafting and publication of a national prosecution policy, we are not certain that such policy will contain guidelines on the exercise of the public interest discretion. If the intention is to include guidelines in the national prosecution policy document , we ask for such intention to be clearly stated in the bill and furthermore, that such guidelines be modelled on the UN Guidelines.

We suggest that these guidelines be drafted by the National Director, in consultation with the Directors and that the bill contain a provision to this effect.

Accountability to Parliament
We recommend that whenever a prosecutor, Director or the National Director declines to prosecute or withdraws a prosecution, substantive reasons should be furnished.

In the case of a prosecutor, reasons should be furnished to the Director who should forward such to the National Director. While a Director should furnish reasons to the National Director. The National Director in turn should be obliged to include in his or her annual report a list of cases where prosecution was declined or withdrawn and the reasons for such decisions.
The Minister should be obliged to table the National Director’s report in Parliament.

Accountability to the public and the right to just administrative action
Whenever a decision is made not to prosecute or to withdraw a prosecution, full reasons for the decision should be communicated in writing to the accused person and the complainant in the case.

The complainant should be informed, in writing, of his or her right to appeal to the Director and ultimately to the National Director.

A system of judicial review of a National Director’s decision should also be provided for.

The above mechanisms are vital in order to ensure that the individual citizen’s constitutional right to just administrative action7 is made a reality.

4.2 National Director

The Power to intervene and review
The Constitution gives the National Director the power to:

• intervene in the prosecutions process when policy directives are not complied with, and
• review a decision to prosecute or not to prosecute. When reviewing decisions, the National Director is required to consult with the relevant Director and to hear representations from the accused, the complainant and any other person whom the National Director considers to be relevant8.

HRC’s comment
The powers to intervene and review are broad powers which give teeth to the office of the National Director. Presumably, the rationale behind inclusion of the power of intervention is to ensure that prosecution policy is adhered to uniformly and without fear, favour or prejudice.

The power to review a decision not to prosecute is crucial to ensuring that prosecutorial independence is not abused. This power, exercised with the investigations and reporting procedures prescribed in the bill, could go a long way to ensuring that decisions not to prosecute are taken without fear, favour or prejudice.

However, the power to review a decision to prosecute poses more complex problems. While it might be desirable for a National Director to exercise this power where there is clearly insufficient evidence to prosecute, there is a potential danger that the National Director could prevent a prosecution that would be politically embarrassing. On the other hand, withdrawal of a prosecution may be necessitated in order to obtain the accused’s co-operation as a state witness.

The court will be unable to act as a check, since no prosecution will take place. Compare to the situation where the National Director reviews a decision not to prosecute; here the court serves as an inherent safeguard since the prosecution still has to prove its case.

In light of South Africa’s history and the possibilities that are presented by the Truth Commission process, it is vital that the potential for abuse of this power is checked.

The extent of the power seems to be limited by the use of the term "review". Legally, the term "review" is normally used in the context of judicial review, where courts exercise the power to examine the propriety of decisions on grounds of lawfulness, bias, malice, interest in the cause and so on. However, there is no certainty that "review" in the context of the Prosecuting Authority will have the same content as "judicial review".

When the National Director makes a decision whether or not to prosecute, this decision should be based on the law. The words of the Minister of Justice are pertinent at this juncture; " Whenever the AG acquires evidence sufficient to secure a conviction, it will be the duty of the AG to prosecute."9

Policy and legitimate political considerations10 however, will also be taken into account; the overriding question being whether a prosecution is in the public interest. The "public interest" test should not be abused by allowing improper political considerations to be taken into account.

United Kingdom
The Director of Public Prosecutions has the authority to intervene in any prosecution at any stage. This can be useful in instances of vexatious and oppressive private prosecutions, however, in the UK, there is considerable debate around this power. It is often argued that the power to rid the defendant and the system of a vexatious and oppressive prosecution should lie with the courts, which are duty bound to give reasons, and are hence accountable.

HRC’s recommendation
Safeguards should be introduced to enable scrutiny of the National Director’s decision to overturn a decision to prosecute. We would like to make two suggestions in this regard:

1) Whenever this power is exercised it should be recorded for the purposes of the National Director’s Annual Report. The details of each case and the full reasons for the National Director’s decision should be recorded in the Annual Report.

2) The complainant in the matter should be furnished with full reasons (in writing) for the decision to decline or withdraw the prosecution.

5. Conditions of service
5.1 National Director and Directors

According to section 18(1) of the bill, "the remuneration, allowances and other terms and conditions of service benefits shall be determined by the President". The proviso states that the remuneration of the National Director shall not be less than that of a judge of the Supreme Court of Appeal while the remuneration of a Director shall not be less than 80% of the National Director’s remuneration.

Furthermore, the bill expressly states that remuneration shall not be reduced during the National Director’s continuation in office.

HRC’s comment
Although there is a prohibition on the reduction of the National Director’s salary, there is no provision against financial rewards, inducements or bonuses.

This is problematic as a precedent of financial rewards could place undue pressure on the office bearer.

HRC’s recommendation
We recommend that the variation of the salary and benefits during the National Director and Directors’ terms of office should be prohibited. The word "variation" would include reductions and increases. However, variation to keep pace with inflation, should be allowed.

5.2 Prosecutors

The bill provides that prosecutor’s salaries shall be determined by the Minister, with the concurrence of the Minister of Finance. However, Parliament will also be involved in the process, in that Parliament may, by resolution, reject the Minister’s determination in whole or part.

HRC’s comment
According to the 1997 April Report on the Attorneys General Public Hearing (held in September 1995) , the salaries paid to prosecutors and state advocates are highly inadequate and have led to many people leaving the profession to join the private sector. Concerns were also expressed that the determination of salary levels was part of a complex negotiations process in the Central Bargaining Chamber, and that this did not meet the need for flexibility in dealing with problems of professionals. The Report recommended that there should be an immediate adjustment of salary scales for all levels of staff to stem the loss of skilled prosecutors to the private sector.

In the light of the above and the crisis within the criminal justice system due to the lack of skilled prosecutors and the low morale due to poor salaries, we support the removal of the issue of the salaries of prosecutors from the realm of the Public Service. We further support the involvement of Parliament in the determination process.

6. Political responsibility
In terms of section 179 (6) of the Constitution the Minister of Justice must exercise final responsibility over the prosecuting authority. As the Minister is responsible for the administration of justice, it is appropriate that s/he should be politically responsible. Section 21(1) provides mechanisms aimed at enabling the Minister to exercise his or her power of final responsibility.

The National Director shall at the request of the Minister -

(a) furnish the Minister with information or a report with regard to any case, matter or subject …;
(b) provide the Minister with reasons for any decision taken by a Director…;
(c) furnish the Minister with information with regard to the prosecution policy referred to in section 179(5)(b) of the Constitution; and
(d) submit the reports contemplated in section 22(1)( c) and (2) to the Minister."

In section 22, the bill also provides for annual reports to be submitted to the Minister.

These mechanisms are aimed at keeping the Minister informed in order to enable him/her to fulfil his/her mandate as final accounting and co-ordinating officer.

HRC’s comment
In a recent Namibian judgement11 it was found on an interpretation of the Namibian Constitution, that direct ministerial control and intervention (as was the case in South Africa before 1992) is not in accordance with the imperatives of the constitutional state, but that the Minister must be informed and bears "final responsibility" for the office of the prosecuting authority.

A Cabinet Minister bears final responsibility for his/her own acts and policies and for all that is done in his/her department. This phrase means that should there be a problem in his department, the Minister is the person with whom the blame will lie. He is the accounting officer.

As the accounting officer, he or she is required to:

• give account by tabling reports in Parliament giving details of affairs in his/her department; [see section 92 (3) (b) of the Constitution]
• answer questions in Parliament on matters arising within his/her department; and
• make amends to correct any inefficiencies which are highlighted.

In the Namibian judgement referred to above, the Attorney-General argued that there cannot be Ministerial responsibility to the President and to Parliament and concomitant responsibility for prosecutorial decisions that it implies, without ultimate superintendence, direction and control being vested in the attorney-general over the office of the prosecutor-general in regard to decisions to prosecute, not to prosecute or to discontinue prosecution. The argument, simply stated, was that it was not possible to be responsible without exercising power.

The Court disagreed, interpreting the constitutional imperative that the attorney-general exercise the final responsibility for the office of the prosecutor-general to mean that the attorney-general (the equivalent of our Minister of Justice) is accountable and answerable for the office of the prosecutor-general, and that the norms and values of a constitutional state demand that the decision to institute or decline prosecutions should vest in a politically independent office (i.e. in the office of the prosecutor-general).

HRC’s recommendation
We would recommend that it be clearly stated in the bill that the Minister of Justice does not have the power to overturn a decision by the prosecuting authority to prosecute or not to prosecute or to issue directives in this regard to the National Director. Such a provision will go a long way in curbing any public perceptions that the bill provides for executive interference in the discretion to prosecute.

For Parliament to hold the Minister accountable, it is essential that s/he be obliged to table the National Director and Directors’ annual reports in Parliament. The bill does not provide for such tabling. (This issue is addressed more conclusively under the next section).

7. Democratic Accountability
Although the bill prescribes extensive reporting mechanisms to enable the Minister to fulfil his/her responsibilities, little provision is made for ensuring that the prosecuting authority is democratically accountable. This would require that systems are put in place which engender and promote public confidence in the prosecution process and ensure that power granted under the Constitution and law is not abused.

Four mechanisms would be relevant:

• parliamentary oversight;
• the publication of reports;
• channels for individuals and public interest organisations to lay
complaints; and
• appeal procedures for complainants when the prosecuting authority
declines to prosecute.

7.1 Parliamentary oversight
The bill prescribes that copies of the following documents must be tabled in Parliament:

• prosecution policy
• policy directives
• the notice regarding the Minister’s determination of salaries and salary scales for prosecutors and deputy directors

There is no provision prescribing that the annual reports of the National Director and Directors shall be tabled.

HRC’s comment
For Parliament to be equipped to hold the Minister to account, it is necessary for the National Director’s and individual Directors’ reports to be tabled in Parliament. Tabling of the reports would enable members of Parliament to ask the Minister specific and informed questions and thereby to hold him/her to account for acts or omissions of the Prosecuting Authority.

The Constitution provides in section 92(3)(b) that " Members of Cabinet must provide Parliament with full and regular reports concerning matters under their control." This provision does not place an obligation on the Minister to table the National Director’s or the Director’s reports, but merely to table a report. In other words, the Minister could table his or her own report on the prosecuting authority, which could mean that a diluted report may be tabled.

Other countries
United Kingdom
All reports submitted to the Attorney General by the Director of Public Prosecutions must be tabled in Parliament.

The Director of Public Prosecutions shall prepare and furnish to the Attorney General an annual report with respect to the operations of the Office for that year. The AG shall cause a copy of that report to be laid before each House of Parliament.

HRC’s recommendation
The bill should provide that the Minister shall table copies of the National Director’s and the Directors’ annual reports in Parliament.

7.2 Publication of reports and other documents
The bill prescribes that the following documents must be published in the Government Gazette:

• national prosecution policy
• policy directives
• notice on the Minister’s determination regarding salaries and salary scales for prosecutors and deputy directors

HRC’s comment
We welcome the provisions which provide for the publication of the above documents. They are a positive step towards ensuring that the public is equipped to hold the prosecuting authority to account. However, we are concerned that there is no provision requiring the code of conduct or annual reports to be published.

If a member of the public wishes to lay a complaint against a prosecutor, they will need to have access to the code of conduct.

United Kingdom
The AG is obliged by statute to ensure that the Director of Public Prosecution’s annual report is published.

HRC’s recommendation
We suggest that the bill should provide for the publishing in the Gazette of the annual reports (national, provincial and extra Directors) and the code of conduct.

7.3 Complaints procedures
Section 10(1)(c) states that the "National Director shall maintain close liaison with the Directors, the prosecutors, the legal profession and legal institutions in order to…promote co-operation in relation to the handling of complaints in respect of the prosecuting authority."

Section 10 (1) (e) refers to the Ministers duty to prescribe a procedure for dealing with complaints about members of the prosecuting authority and administrative staff. The National Director, in consultation with the Directors is obliged to recommend a procedure to the Minister.

HRC’s comment
We welcome the prescribing of a complaints procedure, as this will provide the public with a way of registering their grievances, put pressure on Directors and prosecutors to make sound decisions, and ensure that corruption and inefficiency is brought to the attention of the National Director. A complaints procedure will help ensure that the day to day exercise of power is not being abused.

A complainant may lay a complaint against a prosecutor’s decision. The complaint might relate to a decision not to prosecute or a decision to charge the accused with a lesser crime. The prosecutor is then required to answer to his/her superiors. The possibility of complaints on their record and disciplinary action against them places pressure on prosecutors to make sound decisions.

HRC’s recommendation
We would recommend that the procedure prescribed should be accessible and open to all members of the public. Furthermore, opportunity to present oral evidence should be provided for. (This is particularly important for public interest organisations which monitor abuse of force by police officers and corruption within government. Should they detect a pattern of non-prosecution in such cases, they should be given an opportunity to present their evidence to an impartial forum.)

7.4 Administrative and judicial review procedures
The bill makes no mention of administrative or judicial review procedures.

HRC’s comment
Although the 1992 Attorneys General Act makes no mention of administrative review proceedings, a complainant may appeal to the Attorney General to review an individual prosecutor’s decision not to prosecute. However, if the Attorney General agrees with the prosecutor’s decision, the complainant has no recourse to a further appeal. The only remedy open to him or her is to institute a private prosecution. This remedy is not accessible to most people given the fact that the complainant is required to pay the costs of such a prosecution and furnish R1000 security.

The Constitution guarantees the right to just administrative action which includes the right to be given reasons for a decision and the right to review by a court or an independent and impartial tribunal. 12

German law provides citizens with rights to administrative and judicial review of prosecutorial decisions not to prosecute.

Anyone is entitled to make a formal demand to the prosecutor, asking him or her to prosecute in a particular case. If the prosecutor still declines to prosecute, s/he must notify the complainant of the decision and explain the reasons. The notice must also inform the complainant of the right to seek departmental and judicial review.

Departmental and judicial review is not permitted in all cases; this is prescribed by legislation.

HRC’s recommendation
Procedures for internal appeals and judicial review should be prescribed in the bill. In the alternative, such procedures could be set down in regulations.

8. Conclusion
Significant research and consultation has occurred during the drafting of this bill and the end result is an interesting hybrid system which may have found the balance between independence and accountability.

It is important for the success of the system that it is carefully monitored in order for problems to be located and ironed out. We would suggest that an organisation such as the Bureau for Justice Assistance be tasked with setting up a monitoring mechanism. Such mechanism should specifically collect data on instances where the National Director exercises his or her intervention and review powers or when a prosecutor/Director or National Director declines to prosecute in the public interest. Complaints received should also be collated.

We thank you for the opportunity to present our comments on the bill and hope that you will take our recommendations under consideration.

For further comment, please contact Paula Proudlock or Nobuntu Mbelle at 021 -261 942.