Don’t touch independence of NPA
The ultimate responsibility for criminal prosecution under institutions such as the NPA lies with the president, writes Mtende Mhango.
The National Prosecuting Authority (NPA) was established as a single national prosecuting authority in terms of section 179(1) of the constitution.
As a representative of the state, the NPA has a special role in our criminal justice system, because it has the responsibility of enforcing criminal laws by instituting criminal proceedings on behalf of the state.
Although the head of the NPA is appointed by the president as head of the national executive, section 179(4) of the constitution requires the NPA to “exercise its functions without fear, favour or prejudice”.
The Constitutional Court has even said that “section 179(4) guarantees the independence of the NPA and that any legislative or executive action inconsistent therewith would be subject to constitutional control”.
However, the legal cases involving the appointment and/or dismissal of former NPA heads Vusi Pikoli, Mokotedi Mpshe, Menzi Simelane and Nomgcobo Jiba – and including the recent talk about Mxolisi Nxasana – have called into question perceived attempts to politicise the NPA.
The answers to some of the above legal disputes are still unknown. Politicians, legal commentators and civil society organisations remain concerned by what they perceive to be the failure of the government to ensure the NPA exercises its functions without fear, favour or prejudice.
Following these legal cases, (DA MP) Dene Smuts last year introduced a bill called the Constitution Eighteenth Amendment Bill.
Before it was defeated in the portfolio committee, the bill sought to drastically amend the constitution in matters pertaining to the NPA.
The most important changes proposed by the bill were the requirement that the president should appoint the national director of public prosecutions (NDPP) on the recommendation and approval of the National Assembly and the removal of section 179(6) of the constitution, which provides that the minister of justice shall have final responsibility over the NPA. The latter would have made the NPA almost like a chapter institution.
There were two problems with the proposed change to the appointment of the NDPP.
First, there was no clear articulation of the problem that the bill sought to address.
Every appointing authority has an interest in making an appointment to public office. Does the allegation that President Jacob Zuma has a personal interest in the appointment of the NDPP warrant a constitutional amendment?
Without a clear problem statement of the current practice, it was difficult to be persuaded of the need to reform.
The constitution is different from ordinary legislation because it is a supreme law and binds all organs of state as well as private individuals.
American constitutional scholar Erwin Chemerinsky has put across a view that says the ultimate measure of a constitution is how it balances entrenchment and change.
In his view, “a constitution reflects a wish to place a society’s core values of governance in a document that is hard to revise, thereby limiting itself in an effort to protect the values it most cherishes”.
In order to achieve this societal goal, “a constitution must endure”.
His point is that a constitution must not be amended unnecessarily or based on the personal circumstances of one individual, but only on sound reasons that the current and future society will recognise as important to warrant an amendment to the supreme law.
In fact, Chemerinsky suggests the following to determine whether a constitutional amendment is necessary: (1) constitutional amendments should not be adopted when they would damage the cohesiveness of constitutional doctrine as a whole; and (2) proponents of constitutional amendments should think through the consequences of their proposals, including the ways in which the amendments would interact with other constitutional provisions and principles.
I agree with these principles, which are relevant to South Africa, and I am confident that a majority of South Africans would not disagree (with) the relevance and importance of these principles.
No one could conceivably disagree with the need to contemplate the consequences of the bill on other constitutional provisions and principles, or the need to ensure that the bill does not damage the consistency of the constitutional scheme as a whole.
Second, from a separation of powers point of view, the proposition to delete section 179(6) of the constitution was problematic, because it would have disturbed the constitutional scheme as a whole. For instance, section 85(1) of the constitution, which provides that “the executive authority of the republic is vested in the president”.
What this means is that under our constitution, a single president possesses the entirety of the executive authority, which he or she exercises together with the cabinet.
Contrary to proponents of the bill, who problematise the fact that “the prosecuting authority in our legal order sits under the executive branch and not the judicial branch”, it is a well-established principle of constitutional law that criminal investigations and prosecution of crimes are executive functions.
State institutions and legal commentators accept that the NPA is constitutionally part of the executive branch and does not exercise judicial functions.
It follows that if the bill were to deprive the minister of justice (who serves at the pleasure of the president) of the final responsibility over the NPA and allocate those purely executive functions to the National Assembly, it would run foul of section 85(1) because that section vests all (not some) executive authority in the president.
Section 179(6) is a necessary function of the separation of powers. By deleting section 179(6) of the constitution, the bill would have violated the cardinal principle of the separation of powers, because it would blur the line of respons- ibility, which the constitution and the law require must vest in the executive.
It would not be clear who was politically responsible or accountable for prosecutions, as is the case with the police (under sections 206, 207 and 208 of the constitution) or the defence forces (under section 201 of the constitution) in the republic.
Justice Sandile Ngcobo’s judgment in the Glenister case explains the special feature of our constitution which, if the bill were adopted, would be compromised.
He says: “There are those legal systems, like ours, where the executive is assigned final responsibility over the functioning of police or the prosecution, as the case may be. This is a special feature of our constitutional democracy.”
The framers of the constitution decided to vest executive authority in one person in order to facilitate political accountability.
This is why the president, though able to delegate duties to others, cannot delegate ultimate executive responsibility.
Based on Justice Ngcobo’s observations, it is unambiguous that what the bill had proposed is contrary to the current constitutional scheme, particularly in relation to the constitutional provisions dealing with police, intelligence or defence and, broadly, the exercise of executive authority in South Africa.
The constitution must be read as a whole, and its provisions must be interpreted in harmony with one another.
This would have been impossible if the bill had been adopted.
I do not believe there was any way to cure the defect in the bill in relation to its proposed deletion of section 179(6), except to abandon the proposal. I am therefore not surprised that the bill was defeated in the National Assembly.
* Mhango is Associate Professor at the University of the Witwatersrand School of Law. This article is an extract from one of his recent publications in volume 35 of the Statute Law Review (2014).
** The views expressed here are not necessarily those of Independent Newspapers.