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By Kwazi Dlamini

In February the University of the Western Cape’s Dullar Omar Institute released, under its Africa Criminal Justice Reform (ACJR) project, a discussion document on the National Prosecuting Authority (NPA). The document deals with three key concepts associated with the NPA and its relation to the public, namely accountability, public interest and trust. It suggests that for the NPA to be regarded as a legitimate institution it needs to enjoy trust and in order to enjoy such trust, it needs to be seen and perceived to act in the public interest in an accountable manner.

All three concepts have a bearing on the legitimacy of state institutions and how political power is used.

Download the ACJR discussion document.

For years the NPA has been marred by allegations of corruption, irregular appointments and deliberately sleeping on certain cases. Many of these allegations emerged at two commissions of inquiry, the Zondo Commission into allegations of state capture, corruption and fraud in the public sector, and the Mokgoro Inquiry, established to look into the fitness of top NPA prosecutors Nomgcobo Jiba and Lawrence Mrwebi to hold office.

The discussion document argues that the NPA can salvage its soiled reputation by being accountable – defined by Cape Town University’s Corder, Jagwanth and Soltau as:

Accountability can be said to require a person to explain and justify – against criteria of some kind – their decisions or actions. It also requires that the person goes on to make amends for any fault or error and takes steps to prevent its recurrence in the future.

Report on Parliamentary Oversight and Accountability (1999)

“It is presented that for the NPA to be regarded as a legitimate institution it needs to enjoy trust and in order to enjoy such trust, it needs to be seen and perceived to act in the public interest in an accountable manner,” states the ACJR discussion document. The NPA also has a constitutional duty to be accountable to the National Assembly, as stipulated in chapter 9, section 181-194 of the Constitution.

Transparency, answerability and controllability

“Effective accountability relies on three principles, transparency, answerability and controllability.  In a constitutional democracy the public service must function in a transparent manner, predictably and understandably and nothing must be hidden from public scrutiny especially when human rights and governance concerns are at stake”.

Lack of accountability, the document notes, over the past decade has turned the NPA into a breeding ground for corruption, and the same lack of accountability and susceptibility to political influence has seen a number of high profile cases obstructed or dropped. In 2008, for instance, Advocate Gerrie Nel was arrested on charges that were later withdrawn, allegedly as a ploy to stop his investigation into former police commissioner Jackie Selebi.

For years former police crime intelligence boss Richard Mdluli has been dodging charges including corruption, kidnapping and murder. The charges against him were dropped allegedly on Jiba’s instruction, but were reinstated in 2015.

And Shaun Abraham’s irregular appointment as head of the NPA did the institution no good either as he was alleged to have protected former president Jacob Zuma and his allies.

These situations, and more, that occurred within the NPA in the past 10 years have prevented the institution from fulfilling its constitutional mandate. Lack of independence also caused credibility problems and a consequent loss of trust from the public.

Other challenges discussed in the ACJR document include poor court performance and consequently a poor conviction rate, a growing backlog of cases waiting to be investigated, and a growing number of prisoners awaiting trial. These matters have added to the negative public perception towards to the NPA.

Furthermore, actions and decisions taken by officials must be motivated, rational and justifiable – however, numerous media reports suggest the opposite situation with the NPA.  The institution dropped the charges against Richard Mdluli without following proper procedure. It also dropped 16 charges, which include corruption, against former president Jacob Zuma, just before the ANC’s 2009 national conference in Polokwane, Limpopo. Willie Hofmeyr, the deputy national director of public prosecutions, admitted that he had advised his superior to drop the charges against Zuma as he believed they were part of a dirty trick to discredit Zuma and use the NPA. Hofmeyr later admitted that he was wrong and charges were reinstated in 2018 under Shaun Abrahams, who said: “there are reasonable prospects to successfully prosecute Zuma” before his exit from the NPA.  Zuma’s next court appearance is in May this year in the Pietermaritzburg High Court.

No accountability without information

The discussion document notes that without knowledge of what officials are doing and what decision are they taking, accountability cannot exist.

The NPA’s decision to drop the charges against Zuma affected the country and continues to do so as it struggles with the aftermath of state capture. The years of Zuma’s presidency were dubbed by many, including prominent ANC members, as “lost years” because of the corruption and impunity that flourished during this time.

The ACJR document says that to properly enforce accountability, Parliament must exercise control over state institutions it is overseeing, because failure to hold government accountable creates conditions for impunity. In the Vrede Dairy scandal – which to date has seen no resolution – Parliament summoned the NPA to explain the reason for delay of arrests.

According to the ACJR, the NPA’s failure to make decisions works against public interest and adds to distrust. The NPA has failed to make decisions on 686 cases referred to them since 2013 by the Special Investigating Unit. During 2016/17 the Independent Police Investigative Directorate referred 1 140 cases to the NPA but has still not received response on 97% of those cases. Most cases are solved through mediation, a questionable practice that allows individuals to walk away with a fine. 

The mandate of the NPA is to act on the greater good of the public and on the interest of the public and it is further protected by the constitution to carry out this mandate without fear, fear or prejudice. Its legitimacy depends on the way it is perceived and trusted to carry out its duties. The NPA’s failure to effectively pursue criminals and achieve justice has led President Cyril Ramaphosa to announce, during his State of the Nation Address last month, an introduction of a new unit within the NPA to deal strictly with corruption and other serious crimes.