National Prosecuting Authority and Justice
BYLINE: Mervyn E Bennun
The indictment served on Jacob Zuma has been met by claims that the charges are politically motivated to prevent him from becoming president of South Africa. The ANC Youth League president, Fikile Mbalula, and others have described them as being "trumped up", and Mbalula added at a press briefing in Durban that "the decision to charge Zuma is not a decision by the judiciary; it's a decision by the state and the case is being led by Mbeki".
This statement is incoherent and pompous twaddle. Are decisions to prosecute taken by the judiciary? What exactly does he mean by "the state"? How does he think President Thabo Mbeki fits into the picture?
More broadly, however, the claims that the prosecution is driven by Mbeki's political motives must be seen in the context of the process in which decisions are taken to prosecute crimes in South Africa.
The National Prosecuting Authority is a typical example of, and in many ways is similar to, such state organs in many other countries - particularly those influenced by Britain - where the accusatorial system of criminal justice is used.
It was established in principle by section 179 of the constitution, and given life by the National Prosecuting Authority Act of 1998.
In the broadest summary of some of the many detailed matters the Act covers, the National Director of Public Prosecutions (who heads the NPA) must advise the Minister of Justice and may make recommendations on all matters relating to the NPA and the administration of criminal justice as a whole.
The minister has final responsibility over the NPA, and must be provided on request with all information about any case or anything else being dealt with by the NPA in the course of its duties and functions, and with reasons for any decision taken by it the course of its work and duties. The Act states the NPA "shall be accountable to Parliament in respect of its powers, functions and duties under this Act, including decisions regarding the institution of prosecutions".
With the concurrence of the minister, the NDPP must determine prosecution policy and issue policy directives to be observed in the prosecution process. It also requires compliance with the United Nations Guidelines on the Role of Prosecutors - an excellent document indeed.
The directives are one of the fundamental documents of South Africa's criminal justice system, every bit as important as an Act of Parliament - yet the NPA has chosen not to make them freely available.
It is important that a decision on whether to prosecute in any case is not affected by improper considerations. The UN guidelines stipulate that prosecutors must "carry out their functions impartially and avoid political, social, religious, racial, cultural, sexual or any other kind of discrimination", and the constitution, the Act and policy directives echo this, requiring the NPA to exercise its functions "without fear, favour or prejudice". South Africa is thus in line with the world's "best practice".
As is common elsewhere, the directives establish a two-stage decision-taking process. In the first stage, in South Africa they read: "In deciding whether or not to institute criminal proceedings against an accused, prosecutors should assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution. There must indeed be a reasonable prospect of a conviction, otherwise the prosecution should not be commenced or continued."
Thereafter, if the case passes the first stage, the second must be addressed: are there reasons why, in the public interest, there should not be a prosecution? Like the prosecution policies elsewhere in the world, the South African directives warn that, though a prosecution should normally follow if the test in the first stage is satisfied, "there is no rule in law which states that all the provable cases brought to the attention of the prosecuting authority must be prosecuted". …