Independent prosecutors are vital to South Africa’s recovery

First published by ISS Today

The rule of law, the principle whereby everyone, including the rich and powerful, is subject to the law, is being challenged across the globe in unprecedented ways. In South Africa, the rule of law is in a state of crisis.

Without the rule of law, a nation cannot tackle corruption. When corruption flourishes there can be no meaningful economic growth, no sustainable development, no significant investment and no effective service delivery to the poor, or anyone else. Simply put, without the rule of law a nation cannot prosper.

The centenary of former South African president Nelson Mandela’s birth is a reminder of Madiba’s commitment to the rule of law and accountable government — and how far the country has veered off course. To get back on course, independent and accountable prosecutors are vital.

Cyril Ramaphosa’s election as president has created a political opening to repair the damage to the country’s institutions and, in particular, restore and strengthen the independence and accountability of the National Prosecuting Authority (NPA).

Established in 1998, the NPA was one of the first major institutional creations of the post-apartheid era. Through a variety of innovations, including prosecution-led investigations popularised by the Scorpions, specialised career paths, a focus on performance measurement, and improved conditions of service, the NPA quickly became an employer of choice for a new generation of lawyers.

Many of the NPA’s early successes were undermined through often egregious political interference in the appointment of the national prosecutions head. The NPA’s public credibility suffered from multiple changes in leadership and the quality of some of those leaders. Controversy also surrounded the prosecution or, more often, the failure to prosecute certain high-profile cases. This negatively affected staff morale and senior appointments.

There are two reasons why independent and accountable prosecutors are now vital.

First, the public has lost trust in the NPA. If this is not reversed, it will result in further public pressure, litigation and loss of business confidence. This is bad for the country and will weaken electoral prospects for Ramaphosa’s African National Congress in 2019.

Second, having narrowly avoided irreversible state capture that would have ruined the country economically, Ramaphosa and his leadership team are aware of the procedural and institutional weaknesses that allowed the NPA to be co-opted by an unscrupulous executive.

A prosecution service that carries out politically targeted prosecutions, or fails to act against powerful political and business elites, is an enemy of the people it is supposed to serve. It is independent in name only. The challenge is to strengthen and sustain all elements of independence, both in terms of the law and crucially, in the day-to-day work of prosecutors and their institution.

This means looking beyond legal reforms and internal structures. A cohesive rule of law strategy is needed that strengthens all pillars of democracy, like free and fearless media, a vibrant and outspoken civil society, and other accountability mechanisms.

Ramaphosa is scheduled to open the annual meeting of the International Association of Prosecutors in Johannesburg this week. Under the theme of prosecutorial independence, hundreds of prosecutors from some 90 countries will attend. Ramaphosa could use this international platform to underscore the commitment he made to restore public confidence in the NPA, and the rule of law more generally.

In the coming weeks he will appoint a new prosecutions head. This should be a dynamic leader with the technical, managerial and political skills to turn the NPA around. Ramaphosa should publicly commit his government to protecting the new head’s independence from executive and political interference.

The way the NPA’s senior leadership team is appointed also needs to be reformed. These appointments are made by the president without parliamentary or public scrutiny. This is particularly damaging as the NPA is structured hierarchically, with the prosecutions head empowered to review any decision to prosecute or not to prosecute. These structural weaknesses must be addressed if South Africa is to avoid repeating mistakes of the past.

Other countries – especially post-authoritarian democracies in Central and Eastern Europe and Latin America — are increasingly reforming appointment processes for their most senior prosecutors. Procedures are now impartial, transparent and based on objective criteria.

In some places the appointment process separates the evaluation (and shortlisting) of candidates from the selection of a finalist. Public and civil society input is invited, and independent experts in the evaluation and selection of candidates are involved.

Some jurisdictions have prosecutorial councils comprising prosecutors, legal academics, members of parliament and the political executive to help select senior prosecutors. The councils also develop prosecutors’ career paths and promotion criteria.

To restore public confidence in the NPA and enhance its accountability, a statutorily based prosecution service inspectorate and an independent prosecutorial complaints assessor mechanism should be considered.

While better appointment processes and accountability mechanisms are necessary, these are not sufficient to ensure an NPA that provides neutral, non-political decision making about the application of criminal law and policy to real cases. For this, civil society, the media and academia must play a constructive role.

Events of the past few years have shown how quickly strong institutions are undermined. Sustained and concerted effort by government reformers and civil society is needed to ensure the NPA is independent and accountable — true to its mandate to be the “lawyers for the people”. DM

Anton du Plessis is Executive Director, Institute for Security Studies and Martin Schönteich is Senior Managing Legal Officer, Open Society Justice Initiative.