010913: Mr Mxolisi Sandile Oliver Nxasana has been appointed as the National Director of Public Prosecutions with effect from 1 October 2013. Mr Nxasana currently practices as an attorney with a wealth of experience in criminal litigation, coupled with his having occupied senior positions in the legal profession including the Chairpersonship of the KwaZulu-Natal Law Society.

We must deal with political interference affecting ability to fight crime, writes Gareth Newham.


Regardless of the outcome, the publicity around the Oscar Pistorius trial may very well have contributed to a new level of public respect for the work of prosecutors. This is because it showcased the skills and talents of one of our internationally recognised and award-winning prosecutors, Gerrie Nel.

Indeed, most prosecutors are committed professionals who are dedicated to using law to hold those who’ve committed serious crimes accountable for their actions.

However, while our National Prosecuting Authority (NPA) is staffed largely by skilful and honest people, there are clear challenges facing this vital agency of the criminal justice system.

South Africans were shocked in 2012 when six policemen prosecuted for killing Andries Tatane were acquitted by the court due to lack if evidence. This was despite video evidence showing that the officers had illegally used disproportionate force against an unarmed man resulting in his death.

To date, the NPA has not provided any public statement about why the case failed despite the ample evidence of the crime. The public still does not know if a review of this case was undertaken and whether any lessons were learnt to prevent a re-occurrence?

Over the past decade the SAPS and the NPA have received substantial increases in funding and resources. The additional resources explain the annual increase in the number of people arrested by the police over the past decade. In 2012/13,1 682 763 people were arrested, which is almost 600 000 people more than the police arrested in 2002/03.

However, the additional resources have not yielded the same type of result for the NPA. In 2012/13 the NPA finalised a total of 323 390 cases, which is around 84 000 fewer cases than they finalised in 2002/03.

This could be the result of a fundamental problem with the NPA or that the quality of investigations by the police has been deteriorating so that the cases referred to the NPA are simply not winnable.

Arguably, one of the factors affecting the performance of the NPA is the political interference in this agency. A most striking example of this was when Vusi Pikoli was suspended as NPA head by former President Thabo Mbeki who was determined to protect his corrupt friend and SAPS national commissioner Jackie Selebi from arrest and prosecution.

Recently it was announced that President Jacob Zuma had informed his latest appointment to the post of National Director of Public Prosecutions Mxolisi Nxasana, that he was to face a board of inquiry into his fitness to hold this important position. Another inquiry headed by retired constitutional Judge Zak Yacoob will look into allegations of political camps undermining the leadership of the NPA.

This is particularly problematic for the health of South Africa because prosecutors play an indispensable role when it comes to tackling crime and corruption. The constitution recognises this and for that reason expects the NPA to act completely independently and without fear or favour. The political interference in the NPA has fundamentally weakened public trust that this is indeed the case.

The reason is that it is prosecutors who decide who should be prosecuted or not. They should be guided in this decision only by the law and the evidence before them. When they are guided by other considerations, it means that people who have broken the law escape sanction and are free to continue committing crimes. Alternatively, people who are innocent may find themselves facing lengthy and expensive criminal trials. If this starts to happen the rule of law starts to break down and crime and corruption will grow, eventually threatening the health of the country and all the people who live in it.

It is for these reasons that the NPA needs to be publicly accountable for the decisions it makes and its performance in prosecuting criminal cases. However, the NPA is the only criminal justice institution that does not have an independent oversight body that can assist in holding it accountable. The SAPS has the civilian-run national and provincial secretariats of police, with the Independent Police Investigative Directorate who specialise in overseeing the SAPS and the conduct of its members.

The Department of Correctional Services is overseen by the Judicial Inspectorate for Corrections that can receive and independently investigate complaints made by inmates. The Judicial Service Commission can receive and act on complaints made against judges. The NPA, however, is subject to no such specialised oversight.

This does not mean that there is no oversight of the NPA. The minister of justice, parliamentary committees, the auditor-general, and the Treasury all play some degree of oversight of the NPA. However, they also oversee other departments and none specialise in the mandate and functioning of a prosecutorial agency.

For example, when in the middle of last year the auditor-general presented his annual report on the NPA to Parliament, it found that the agency had failed to achieve 22 of its 40 targets. However, very little information was given explaining why this was the case and what could be done to improve the situation in the future. This is because neither the AG nor the Members of the Justice Portfolio Committee are specialists in the profession of prosecutions.

The Institute for Security Studies therefore undertook an internationally comparative study to identify countries that possess workable examples of independent agencies dedicated to overseeing and strengthening prosecuting authorities. This was done to identify possible ways in which the performance and accountability of the NPA could be strengthened at an institutional level.

For example, in 2000 the UK established an independent statutory body to assist with strengthening its Crown Prosecution Service. Called the Crown Prosecution Service Inspectorate (CPSI) it plays a number of roles from reviewing specific cases to understand why cases may have failed in court by examining the quality of prosecutorial decisions, to identifying key factors that impact on prosecutorial effectiveness.

It has also undertaken broader studies such as assessing the quality of police dockets that come to the prosecuting authority and victims’ and witnesses’ experiences of the criminal justice system.

While the CPSI is an example of an independent oversight body with a broad mandate, some countries prefer a more focused role for their oversight agencies.

Northern Ireland has an independent assessor of complaints which investigates whether complaints against prosecutors or the prosecuting authority have been handled fairly, thoroughly and impartially. Japan has a prosecutorial accountability mechanism to review decisions not to prosecute individual cases. Between 1949 and 1989, Japanese prosecutorial review commissions reviewed an average of 1 930 cases a year where decisions were taken not to prosecute a suspect and recommended that a prosecution went ahead in about 7 percent of cases heard.

Like in Japan, South African prosecutor’s authority to decide not to prosecute a suspect is open to abuse. The decision to prosecute someone is checked by the judiciary, which can acquit an accused if there is insufficient evidence to prove that a crime was committed. But when the decision is made by the NPA not to prosecute that is usually the end of the matter. When the decision not to prosecute is taken in matters involving powerful politicians or well-connected people on weak grounds, it results in the perception that the prosecution service does not act independently or without fear or favour.

The NPA’s decision to withdraw criminal charges against President Jacob Zuma, senior SAPS official Richard Mdluli and senior ruling-party politicians in KwaZulu-Natal despite strong evidence of criminal conduct on their part are examples where the NPA has opened itself up to accusations that some suspects receive preferential treatment from prosecutors.

Rather than waiting for a crisis to destabilise the NPA before appointing inquiries, it may be better to have an independent agency that plays an oversight role. These options should be considered as the ability for South Africa to effectively address the challenges of crime and corruption depend on an independent and effective NPA.


* Newham is Head of Governance Crime and Justice Division at the Institute for Security Studies. This article is partly based on an ISS report titled ‘Strengthening prosecutorial accountability in South Africa’ available at www.issafrica.org.

** The views expressed here are not necessarily those of Independent Newspapers.

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