South Africa needs to consider creating an independent oversight body to scrutinise the performance of the National Prosecuting Authority (NPA), according to a new paper released today by the Institute for Security Studies (ISS).
'Prosecutors are the most powerful officials in South Africa's criminal justice system,' says author of the ISS paper Martin Schoenteich from the National Criminal Justice Reform Programme at the Open Society Justice Initiative based in Washington DC. 'Their discretion about what criminal charges should be brought affects the safety and security of all.'
Unlike the police and prisons service, the NPA has no dedicated independent accountability mechanism, and its public credibility has been undermined through multiple changes in leadership and controversy surrounding the prosecution or non-prosecution of high-profile cases. The NPA is also accused of prosecuting too few cases, and has been criticised for losing a number of important cases.
'The NPA's ongoing credibility crisis raises the question whether it is timely to explore a dedicated prosecutorial oversight and accountability mechanism for South Africa,' says Gareth Newham, head of the ISS Governance, Crime and Justice division.
'Effective prosecutorial accountability empowers the public and makes prosecutors responsible to citizens for their actions. This is particularly important in a country like South Africa where officials have considerable public authority to decide who to arrest, prosecute, convict or imprison, or to award contracts worth millions to some but not others.' Greater accountability serves to strengthen rather than weaken prosecutorial independence, Newham says.
Some aspects of the NPA's activities are scrutinised by bodies including parliament, the Auditor-General, and the National Treasury, but none focus exclusively on the NPA and their staff may lack a detailed understanding of how the NPA works.
The paper explains that other countries have mechanisms such as prosecution service inspectorates, independent complaints offices, and prosecutorial review commissions. In England and Wales, the Crown Prosecution Service Inspectorate seeks to improve the quality of justice through independent inspection and assessment of the Crown Prosecution Service (CPS). It examines of the quality of prosecutorial decisions and highlights where poor performance represents a risk to the public or to the reputation of the prosecution service.
A similar inspectorate in South Africa could provide independent assurances to the public and other accountability bodies - such as parliament and the auditor-general.
In Northern Ireland, an independent assessor of complaints can investigate and determine whether complaints have been handled fairly, thoroughly and impartially by the prosecution service. In Japan, Prosecutorial Review Commissions can review prosecutorial decisions not to prosecute individual cases, and serve as a check on political interference in the prosecution of high-ranking state officials, and political and business leaders.
The NPA's existing internal accountability mechanisms, such as an Integrity Management Unit (IMU), do little to reassure public confidence in its institutional health and performance. According to the NPA's 2012/13 annual report, only five out of the organisation's almost 5 000 employees, or 0.1 per cent, were dismissed as a result of misconduct over a year.
'This may be a sign of the NPA's institutional health, the IMU's good work, or an organisation unable to police itself and expel unethical employees,' Newham says. 'Barring an independent review, it is difficult to interpret these figures with any confidence.'
Newham said a debate is needed on the benefits of accountability and oversight mechanisms for the NPA, and SA's policymakers and criminal justice reformers should be able to draw from international good practice and experience.
The ISS is an African organisation that aims to enhance human security on the continent. It does independent and authoritative research, provides expert policy analysis and advice, and delivers practical training and technical assistance.