The National Prosecuting Authority’s (NPA’s) bosses want the agency to be moved from under the umbrella of the justice department so it can operate more like a chapter 9 institution, like the public protector or the auditor-general, to ensure its independence.
While the constitution does explicitly provide for an independent prosecuting authority, there have been instances where this has been brought into question. The NPA was for the better part of a decade seen as being politically abused, and was in some cases seen to be swayed to either not prosecute serious cases, or prosecute certain people on trumped-up charges.
The issue of separating the NPA from the justice department was raised by national director of public prosecutions Shamila Batohi when the authority addressed parliament’s portfolio committee on justice earlier in October.
NPA spokesperson Sipho Ngwema said in response to questions from Business Day on why the NPA wanted greater independence that it was known that the authority did not “escape the tentacles of state capture” notwithstanding the constitutional, legislative and other guarantees of prosecutorial independence both institutionally and functionally.
“Clearly, these have not prevented the independence of the NPA from being compromised,” he said.
Ngwema said the NPA was a creature of the constitution and was neither a part of the executive or of the legislative arms of the state. It falls under the department of justice, which controls the budget the authority receives, while its accounting officer is the department’s director-general.
It was “critical therefore to ensure its independence, [and that] it is financially and administratively independent”, he said.
It was inconsistent with the notion of independence if the NPA’s budgetary process was subject to the control of the executive or the justice department, while staffing appointments of the NPA were also subject to the approval of the department and the minister, he said.
“Hypothetically, if there were to be serious differences with regards to prosecutorial decisions taken by the NPA, those could be adversely affected because the executive can manipulate that process. This may dent and compromise a perception of independence of the NPA,” he said.
“The NPA can be rendered powerless. Independence must mean no undue influence or pressure to the NPA.”
Processes were under way to deal with this, and it was encouraging that there was universal recognition that the NPA must be independent to avoid what has “ostensibly” happened in the past, he said.
The NPA was engaging all relevant role players, including the justice minister Ronald Lamola and the department.
“The independence should not just be around prosecutorial decisions, but the institution should have its own accounting officer and report directly to parliament as the constitution envisaged,” Ngwema said.
When contacted for comment, justice ministry spokesperson Chrispin Phiri said he did not believe commenting would take the story any further.
Ngwema said the NPA would effectively want to operate similarly to chapter 9 institutions, which account directly to parliament.
In terms of the NPA Act, the authority is accountable to parliament in respect of its powers, functions, and duties, including decisions regarding the institution of prosecutions, he said.
The NPA must perform its functions and responsibilities without fear, favour, or prejudice and that the authority “must be insulated and strengthened against any undue or improper interference, pressure and influence”, he said.
“It is submitted that more needs to be done to strengthen or enhance the independence and perception of independence of the NPA and its senior leadership.”
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