South African Human Rights Commission

1. Introduction

The Human Rights Commission ("the Commission") welcomes the National Prosecuting Authority Bill ("the Bill").

The Bill is Constitutionally mandated to give effect to Section 179 of the Constitution, which section has established the parameters of the National Prosecuting Authority. In addition to meeting the mandate, the Bill presents a good and workable framework for this important function.

The Bill comes before Parliament at a time when there is increasing public pressure on the government to address issues around crime, and the prosecution of suspected offenders. Under such intense pressure there is often a tendency to drift towards immediate and short terms policies and solutions, often at the expense of important Constitutional principles, and human rights.

However, the Bill gives life to the new system for the management of public prosecutions, which was established in the Constitution, and introduces a new era of increased independence and accountability for those exercising control over public prosecutions.

2. Context of the Bill
The importance of the introduction of this Bill must be seen in the context of public perceptions of the criminal justice system, and also perceptions regarding the political bias of the previous prosecuting machinery.

There is an urgent need to improve both the image and the functioning of the criminal justice system. There appears to be a crisis of confidence in the capacity of the system to deal with crime, and allow the full ventilation of issues in court. The Commission receives many complaints from members of the public regarding the effectiveness of the courts. Confidence must be restored in the criminal justice system. Should the public unease with the ability of the courts to deal with crime grow, the criminal justice system will be rendered powerless, and this will lead to the erosion of the rule of law.

The underlying principles of the Bill, as reflected in Section 179 of the Constitution, and the framework it establishes for public prosecutions, reflect the new order, and it is hoped that the implementation of the Bill will address public concerns. Perceptions of the increased legitimacy of the criminal justice system will, in itself, go a long way to the strengthening of human rights in South Africa.

The actual and perceived political bias in the criminal justice system over the last few decades must be confronted. The system was viewed as one which was skewed to serve political interests. Recently, there were allegations that certain Attorney-Generals had failed to bring prosecutions for political reasons. There will always be dissatisfaction with a law that has the effect of preventing important and prima facie good cases from reaching the courts. No-one is immune from the allegation of political interference; even the 1992 Attorney-General Act was described as a "last gasp attempt by the apartheid government to ensure that prosecuting authorities could continue in office, free from the interference of a new democratic government."

3. Comment
The Commission commends the Bill for the following:

It demonstrates an attempt to unify prosecution policy, prioritize categories of crimes and set guidelines for their effective prosecution, thereby increasing levels of professionalism in the manner in which justice is dispensed.

There is a commitment to the improvement of skills of members of the office, via training programmes.

The Bill allows for a co-ordinated approach in the investigation of crime, by both the prosecuting agency and the police; this co-operation is important and necessary in the effective combating of crime.

The Bill is an important step in raising confidence in the legitimacy and effectiveness of the criminal justice system.

In general there has been provision made for the twin requirements of accountability and independence. The Commission has certain suggestions regarding the Bill, which fall broadly into these categories.

The Attorney-Generals maintained in their submission to the Constitutional Assembly that they have always enjoyed complete freedom of discretion; this certainly is the case under the current law, although it may be said that they were curtailed by a level of political accountability under the previous law. It is untenable for the crucial and powerful discretion which is currently held by Attorney-Generals, and which will be held by the National Director to be without any form of review, either formally or informally.

Under the existing law, the Attorney-Generals are accountable to nobody. Although there are broad mechanisms to suspend an Attorney-General for misconduct, there are no provisions for the tracking of the daily exercise of the discretion. In addition, without any guideline or framework, "misconduct" is difficult to define for the purposes of suspension. It is notable that this procedure was never utilized.

Under the new Bill, the internal lines of accountability within the National Prosecuting Authority are made clear: prosecutors to Deputy Directors to Directors to the National Director, and ultimately to the Minister of Justice, who has final responsibility for the authority.

In addition to this, there is public accountability through Parliament. The new bill formalizes the procedures for the formation of prosecuting policy, which will be consistently applied throughout the country. In terms of section 10(2), this prosecuting policy and any policy directives must be published in the Government Gazette, and tabled in Parliament. Accordingly, it becomes clear to what the prosecuting authority is accountable. Given that Parliament can remove the National Director from office, there is a relationship of broad accountability between the prosecuting authority and the public.

There are various provisions relating to reports which are to be compiled by both the Directors and the National Director. One annual report must be submitted to the Minister of Justice. In addition, the National Director may submit a report to parliament. It is on the question of reporting that the Commission would like to comment.

The Commission requests that consideration be given to:
The introduction of a section providing for the compulsory tabling of reports from the National Prosecuting Authority in Parliament, either through the Minister of Justice, or directly.

The possibility of requiring the Minister of Justice to table the annual report of the National Director within a reasonable period of his or her receipt thereof could be considered.

Provision can be made for the removal of sensitive information, should this be necessary. The tabling of such reports will increase the public accountability of the Authority.

Section179 (5)(d) provides for the National Director to review decisions to prosecute or not to prosecute, having heard representations from the various parties. This discretion is powerful, as the National Director may overrule decisions which have been taken. The discretion would be circumscribed by the fact that it would have to comply with the published prosecution policy and guidelines. However, there is good reason for the reasons for any decision taken in line with this discretion to be reduced to writing.

The Commission requests that consideration be given to:

The inclusion of a provision requiring the National Director to give written reasons for any decision taken in terms of Section 179(5)(d)

The independence of the National Prosecuting Authority is vital. The office must function free from any political interference, and serve independently and effectively. A critical aspect of the independence of the Authority is the appointment process for its National Director, and directors. The Act refers only to Section 179 in this regard, which sets out that the President appoints the National Director. It is not clear how the President would decide on the appointment, and it is likely that he would act on the advice of a Committee or a panel or a group of advisors.

The Commission requests that consideration be given to:
The Bill setting out clearly on whose recommendation the President appoints the National Director, and Directors, in order to increase the transparency of the appointment process, and to prevent any possibility, suggestion or perception of political influence in the appointment.

The creation of a transparent selection procedure of nominees for appointment by the President, with provisions for the interviews or deliberations of whichever committee is charged with this function to be open to the public.

Attention should be given to whom the most appropriate body is to make these recommendations, and thereafter to incorporating the recommendation process into the Act. Various suggestions have been made as to the body who makes the recommendation. These have included the Judicial Service Commission; a new Commission especially created for this purpose with representatives from the bench, bar, law societies, and non-governmental organizations; an all party parliamentary committee and a civil society committee.

The Bill makes provision for the removal of the National Director from office on the grounds of misconduct, ill health or incapacity, by the President with confirmation by Parliament, or by parliament. While such provisions are obviously necessary, the requirement of due process in the removal process should be adhered to.

The Commission requests that consideration be given to:

The inclusion of a section making provision for the National Director to have some form of hearing before Parliament, either through an existing Committee, or one especially created, before a decision to remove him or her form office.

The provision of clarity on what majority is required in Parliament for the removal of a National Director.

4. Conclusion
The Bill can only provide the framework for, and direction to the National Prosecuting Authority. The effectiveness of the new system will be tested in its implementation. Should provision be made for the additional clauses set out above, which will increase accountability, and ensure independence, the Commission is confident that the Authority will grow in credibility, and play a large part in restoring confidence in the criminal justice system.