A Private Member's Bill to create a more independent National Prosecuting Authority

I am Gazetting today a Private Member's Bill amending section 179 of the Constitution which takes forward ideas proposed by then President Kgalema Motlanthe, former Justice Minister Enver Surty and MPs from all parties who sat on the Ad Hoc Committee which confirmed the decision to sack Adv. Vusi Pikoli as National Director of Public Prosecutions (NDPP). The MPs reported that Parliament should consider its own role in appointing the NDPP because it is anomalous that Parliament removes the NDPP but plays no role in appointing him or her.

The Bill contains proposals I have made in Parliament since 2010 for a new appointment mechanism and increased independence for the NDPP and the National Prosecuting Authority as a whole.

Appointment and removal provisions are central to any independent institution: I propose the same mechanism that applies in sections 193 and 194 to the Chapter Nine Independent Institutions (a multi-party committee of MPs). However, other mechanisms are possible, and it will be necessary to achieve consensus because Constitutional amendments require a two thirds majority. For example, President Motlanthe reportedly proposed the Judicial Service Commission in 2008. Although that is the model used in Namibia, I have not followed it because the prosecuting authority here is not part of the judiciary, and the JSC is itself controversial.

The Bill also proposes the deletion of section 179 (6) which gives the Minister of Justice "final responsibility". This stands in contrast with the requirement in s 179 (4) that the NPA must be able to function without fear, favour or prejudice. Section 179 simultaneously follows two international models: it has been commonplace in Commonwealth countries that governments exercise ultimate political authority over prosecutions; while in other jurisdictions the prosecuting authority is truly independent. The international trend is toward independence, and it is uncharacteristic of South Africa not to be at the forefront of democratic trends.

The Bill is intended to be considered alongside a NPA Amendment Bill being prepared by the Justice Department, which (on reports received to date) gives the NPA institutional independence.

Our recent history, inclusive of the sacking of Adv. Pikoli and the setting aside of the appointment of Adv. Simelane, together with the delay in replacing Adv. Simelane, makes it clear that we need a new appointment  and removal mechanism at arm's length from the executive. But the central question, of which the issue of appointment and security of tenure forms part, is the degree of independence which the NPA and its Head should enjoy.

Interested persons and institutions are invited to comment on the Private Member's Bill and can send their submissions to the Secretary of Parliament.

Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, June 13 2013

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