Efforts to ensure the NPA’s operational and financial independence have stalled, leaving the judicial system subject to bureaucratic bottlenecks and administrative interference.
Written by Martin Schönteich
Over the decades, there have been repeated attempts to strengthen the independence of the South African National Prosecuting Authority (NPA). Will the new National Unity government succeed where the previous government stumbled?
Prosecutorial independence is not just an abstract legal concept; it is fundamental to the integrity of a fair judicial system. Without this, prosecutorial decisions could be influenced by political or personal interests, and the law could become a tool of the powerful. When this happens, corruption becomes widespread, public trust declines, and illegal activities become widespread, a situation that is common in South Africa.
Globally, prosecutorial independence is a widely recognized standard. Both the United Nations Guidelines on the Role of Prosecutors (1990) and the International Association for the Professional Responsibility of Public Prosecutors (1999) state that prosecutors must be free from political influence in order to effectively deliver justice. I am emphasizing that this is not the case.
Prosecutorial independence is recognized worldwide as the cornerstone of a fair and healthy judicial system.
The Jakarta Statement on Principles for Anti-Corruption Agencies and the accompanying Colombo Commentary emphasize the importance of financial autonomy for institutions such as the NPA. Without control over budgets and personnel decisions, these institutions become vulnerable to manipulation and control by outside forces.
South Africa’s recent history is a stark reminder of the dangers posed by weak prosecutorial systems. The era of state capture exposed the devastating consequences of government interference in prosecutorial decisions. With key government institutions weakened, the NPA struggled to hold those responsible for corruption to account and prosecute crimes generally.
The importance of prosecutorial independence is most evident in the fight against corruption. Political or “massive” corruption affects institutions and societies as a whole, destroying governance and economic health. Left unchecked, corruption drains resources that could be used to improve public services essential to development, such as health care, education, and essential infrastructure.
The South African Constitution and the Act establishing the NPA provide that the prosecuting authority must exercise its functions “without fear, favor or prejudice”. These protections should protect the NPA from interference, but political interference has repeatedly undermined the NPA’s ability to function equitably.
Efforts to block the prosecution of prominent figures such as former police commissioner Jackie Selebi and former president Jacob Zuma were ultimately thwarted by independent judiciary and civil society efforts. However, the period of state occupation showed that these victories were not enough. The Selebi scandal led to the sacking of then National Director of Public Prosecutions (NDPP) Vusi Picoli in 2009, and Zuma’s corruption trial is still pending.
Despite constitutional and legal protections, the NPA’s relationship with the public administration, particularly its financial and administrative dependence, leaves it exposed to interference.
The NPA’s funding arrangements are a significant factor undermining its independence. The NPA does not receive funding directly from Congress but relies on the Ministry of Justice, whose director serves as treasurer of the NPA’s budget. This creates a structural weakness as the financial health of NPAs is dependent on another government agency.
Since 2002, the Board of Audit has called for financial independence for the National Police Agency.
The head of the Department of Justice also controls many of the NPA’s personnel decisions, including key appointments, promotions, and the creation of key positions. Although some powers have been delegated to the National Police Agency, these can be revoked unilaterally, undermining the operational independence of the prosecutor’s office.
This setting is inconsistent with international standards. Both the Jakarta Principles and the Colombo Commentary emphasize the need for financial and operational autonomy for prosecutorial institutions.
Another major hurdle is executive authority over key appointments in the NPA. The President appoints the NDPP, the National Deputy Director, and the provincial chiefs. The Minister of Justice has the final say on the appointment of hundreds of deputy prosecutors who exercise important powers. The Minister of Justice can also veto requests by the National Police Agency for external expertise such as forensic accountants, making it difficult for the agency to pursue complex cases with agility.
At best, this system creates bureaucratic bottlenecks and uncertainty over the NPA’s leadership. At worst, it gives administrative authorities unwarranted powers to thwart or undermine prosecutorial efforts, especially when investigations threaten political elites. In either case, the ability of the National Police Agency to function independently would be severely impaired.
Unrestricted prosecutorial independence is not a panacea. As a public institution, the NPA must balance independence and accountability. Prosecutors should not be free from legal oversight or free from checks on their actions. The NPA has made significant progress in this regard, launching an Ethics and Accountability Office to promote integrity and good governance.
A number of bills regarding the operational independence of the NPA have been drafted but have not been submitted to parliament.
The NPA regularly reports to Parliament and civil society on the performance and use of public funds. Furthermore, the Minister of Justice has the statutory authority to exercise “ultimate responsibility” over the NPA, although he is not involved in the decisions on indictment or non-prosecution made by the national and local public prosecutors’ directors.
However, while progress has been made in terms of accountability, reforms around independence have stalled.
Since 2002, the Auditor General has been calling for financial independence for NPAs. In his 2011 budget speech, then-Justice Minister Geoff Radebe announced plans for legislation to “separate” the NPA from the Ministry of Justice. Over the past 15 years, numerous bills have been drafted to strengthen the NPA’s operational independence, but none have been submitted to Congress.
Following the Zondo State Capture Commission’s 2022 recommendations, President Cyril Ramaphosa has pledged to introduce reforms to increase transparency in NDPP appointments and address the NPA’s financial and administrative independence. However, in November 2023, the Portfolio Committee on Justice and Correctional Services expressed frustration at the lack of progress and asked the Minister of Justice to table a bill by January 2025.
The promise was fulfilled. The President, the Ministry of Justice, and Congress all recognize the need to strengthen the independence of the NPA. The Zondo Commission emphasizes the importance of an independent prosecutorial authority in preventing future state capture.
It’s time to take action. South Africa’s new government has an opportunity to do what previous administrations were unable to do: free it from administrative control and ensure financial and operational independence for the NPA. The future of our justice system and this country’s democracy depends on it.
