President Cyril Ramaphosa should urgently appoint a retired judge to conduct an inquiry into the National Prosecuting Authority (NPA) because of its weaknesses and failure to successfully prosecute major corruption cases.
The inquiry should probe the organisation’s leadership, performance, structure and independence, the Centre for Development and Enterprise (CDE) recommends in its latest report called Energise the NPA. The report is part of a series on the priorities that the government of national unity should address to get SA back on track.
Strengthening the NPA is a critical priority, the report says.
CDE executive director Ann Bernstein said in a statement on the report which was compiled with the assistance of senior legal experts that the NPA national director of public prosecutions Shamila Batohi had failed to restore the capabilities of the organisation and fast-track the prosecution of major corruption cases in her six years in office.
Batohi defended the NPA stressing the enormity of the task of fixing the devastation caused to the organisation by state capture and the complexity of corruption cases.
But Bernstein pointed out that “the NPA has failed to institute and successfully prosecute a significant number of major corruption cases long identified in the forensic reports into the Passenger Rail Authority of SA, Transnet and Eskom, in the reports of the Zondo commission and multiple reports by investigative journalists”.
“In several instances, these reports provided the NPA with a complete or near-complete basis to issue an indictment and, where this was not so, more than enough time has elapsed to have permitted the commencement of prosecutions. This poor record has been replicated in the NPA’s anaemic efforts to initiate prosecutions in the other priority areas of organised crime, complex commercial crime, and crimes of tax evasion.”
Bernstein said the “disappointing” performance of the NPA had encouraged impunity among criminals; failed to deter the spread of corruption; and led to a pervasive sense of despair about the state’s ability to enforce the law.
The report says that the inquiry by a retired judge should assess the legal strategies that delay and frustrate the prosecution of accused in corruption cases (so called ‘Stalingrad tactics’) and make recommendations on how courts should manage these situations while recognising the right to a fair trial.
The recommendations from the inquiry should be made to the president and the minister of justice within eight months and tabled in parliament with an action plan within three months of receipt.
“We need to know what is holding back the NPA, and what measures should be taken to turn the situation around as soon as possible,” Bernstein said. “We need to restore accountability. To do this, we need a clear understanding of the reasons for the failure of the NPA, and its poor record in prosecuting (much less securing convictions) in most of the major corruption cases it has been investigating.”
Among the cited weaknesses in the NPA were issues of leadership, internal divisions, a lack of internal capacity and its adoption of a “kitchen sink” approach of assembling all possible charges against an accused rather than finding one or two easier-to-prove charges to ensure corrupt people are found guilty.
Prosecutors who aided and abetted state capture should be removed and underperforming leaders replaced.
Other recommendations made in the report include the immediate release of the full archive of the Zondo commission to the NPA and the publication of a timeline on how it will prioritise prosecutions arising from the commission’s report; the introduction of specialised corruption courts to address delays in prosecutions; a significant increase in the NPA’s budget; the urgent promulgation of the regulations required to establish the Independent Directorate Against Corruption (Idac) as an independent entity; ongoing public backing by the president of the work of the NPA; and support for the use of private resources to help kick-start the prosecution of major corruption and commercial cases.
The CDE report says public-private partnerships should be encouraged to address the NPA’s funding and resource challenges. The NPA should take up private sector offers to provide legal and forensic assistance. Formal structures should be established to provide this assistance through entities funded by the private sector. This funding could pay the fees of private legal and forensic practitioners.
“We are aware that such endeavours are currently being pursued by the NPA, which CDE supports. It is important that measures are taken to ensure that the independence of the NPA and Idac are not compromised in any way,” the statement said.
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