Constitution eighteenth Amendment Bill

1. Constitution eighteenth Amendment Bill 5 November 2013 Portfolio Committee on Justice and Constitutional Development Ms M Smuts MP

2. Object of the Bill • To amend the Constitution of the Republic of South Africa, 1996 so as to: • provide that the President appoints the National Director of Public Prosecutions on the recommendation of the National Assembly • provide for the involvement of civil society in the nomination of persons for the position of National Director of Public Prosecutions; • provide that the National Director of Public Prosecutions may only be removed from office following a finding of misconduct, incapacity or incompetence and the adoption of a resolution by the National Assembly; • delete the final responsibility of the Cabinet member responsible for the administration of justice over the prosecuting authority; and • provide that the National Prosecuting Authority is accountable to the National Assembly.

3. There are two models of public prosecution authorities in common law countries “What structures are needed to ensure fair and adequate prosecutions? There are two possible models. In some countries there is complete independence of the prosecutor. This is true not only in countries such as Italy where the prosecution is part of the judiciary and where each prosecutor is individually independent, but also in countries such as Ireland, Israel, India and some Canadian provinces and Australian states. A second model is that adopted by England and countries such as Australia and New Zealand. In England there is an independent Director of Public Prosecution, who heads the Crown Prosecution Service...however, the Attorney General has the ultimate responsibility for the decision whether or not to refuse consent for prosecution on the grounds of public interest and may direct other Directors accordingly. The Attorney is a member of the government who sits in one or the other house of Parliament and takes the ruling party whip. SECTION 179 of the South African constitution establishes a prosecuting authority, headed by a National Director of Public Prosecution which, by national legislation must exercise its functions without fear, favour or prejudice. This seems to indicate a model of prosecutor of the independent kind, but is this confirmed by section 179 (6) which states that ‘The Cabinet Member responsible for the administration of justice must exercise final responsibility over the prosecuting authority’? ” PROF JEFFREY JOWELL SPEAKING AT UCT IN 2010

4. South Africa has chosen both models simultaneously “In those countries in which the Attorney General is an appointed independent public servant...the objective of actual and perceived political independence is the paramount consideration....whereas in those jurisdictions in which the Attorney General is an elected politician...the objective of effective political accountability is considered just as (or perhaps even more important than) ...independence. HOWEVER THE SOUTH AFRICAN CONSTITUTION REQUIRES BOTH, providing that legislation must ‘ensure that the prosecuting authority exercises its functions without fear or favour or prejudice (s 179 (4). In the same section, the Constitution provides that ‘The Cabinet Member responsible for the administration of justice must exercise final responsibility over the prosecuting authority (s 179 (6)”. PROF PHILLIP STENNING of Keele University, quoted at paragraphs 59 and 60 by FreneGInwala in her Report of Enquiry into NDPP

5. “Review the Constitution and Legislation” – ANC members of the Ad Hoc Joint Committee on Adv. VusiPikoli Then Justice Minister EnverSurty when addressing the Ad Hoc Joint Committee to consider matters in terms of section 12 of the NPA Act (ATC 11 February 2009) referred to “the two constitutional imperatives that exist side by side (i.e. the imperative to collaborate and co-operate and the principle of prosecutorial independence). As the Minister’s final responsibility is not defined in the legislation, Minister Surty suggested that the Committee may want to look at this when making its report. The ANC members of the committee (at paragraph 8.5) said in the Report: Legal Framework Not Clear: ANC members feel that it is unfortunate that matters have come to where they have in the case of AdvPikoli. A major context for this is the lack of sufficient clarity on aspects of the legal framework...ANC members are of the view that the incoming executive and Parliament need to review the Constitution and legislation to clarify the relationship between the NDPP, executive and Parliament. That is what the Constitution 18th Amendment Bill tries to do. We are in a position to review and amend at a time when international guidance – which was absent when the Constitution was being negotiated - is available. It is available inter alia from the work of the Council of Europe’s Venice Commission, which has been advising the countries of the former Soviet Union to move away from the party-run Prokuratura model. England, too, now confines political control to certain “consent cases”. The trend everywhere is toward the independent prosecution found in the common law countries cited.

6. Independent prosecution already asserted by Constitutional Court It seems to me that the Constitutional Court in the Certification Judgement already gave the full trumpet blast for pure independence: Paragraph 146 read: Section 179 (4) provides that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. THERE IS ACCORDINGLY A CONSTITUTIONAL GUARANTEE OF INDEPENDENCE, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts. For that reason, I have proposed the outright deletion of s 179 (6), the Ministerial “final responsibility”. The present Justice Minister does not exceed the provisions of s 33 of the NPA Act, which purports to give effect to the final responsibility by allowing him to ask for information on any case, or reasons for decisions taken by a Director. But the previous Minister not only asked AdvPikoli for information, she also told him “You shall not pursue the route that you have taken steps to pursue” until she had satisfied herself that sufficient information and evidence existed for the arrest an preference of charges against the National Commissioner of the Police Service. Section 33 is based on the 1992 Prosecutions Act, which intended that there should never again be political interference in prosecutorial decisions. But it demonstrably does not prevent such interference.

7. An alternative to the deletion of the Ministerial final responsibility The Minister has  pointed out  that the Supreme Court of Appeal in NDPP v Zuma (the Nicholson case) found that although the NPA’s  prosecutorial responsibility appears to conflict with the final responsibility, “they are not incompatible”. It cited the Namibian Supreme Court which held that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of (inter alia)  all prosecutions which might arouse  public interest. My answer is as follows: Then say so. If the Justice Committee decides to keep the final responsibility, alongside section 33, for its information gathering properties, then it is imperative to add at the end of subsection 6  that the Minister may not instruct the NPA to prosecute, decline to prosecute or terminate a pending prosecution. This needs to be done in the Constitution itself for certainty. My amendments do not change s 179 (5) which requires that broad prosecution policy must be determined in concurrence with the Minister. That seems to me the acceptable way in which a democratically elected government can influence priorities. It is interference with  specific cases that is unacceptable and improper because the NPA must have prosecutorial independence.

8. The implications of independence for  the appointment and removal of the NDPP Appointment, security of tenure and removal provisions form part and parcel of the degree of independence of an institution. They are the indices of independence, as the Constitutional Court has held. It is therefore because the NPA must be prosecutorially independent that I propose the removal of the power of appointment of the NDPP from the President as Head of the National Executive.  I propose the s 193 Chapter Nine multi-party mechanism, with attendant transparency and public participation, but the same majorities of 60% required for the Public Protector and Auditor-General. That is one model, there are others, such as those found in Ireland. The present system has not worked of late, with one inappropriate appointment set aside by the courts, followed by a simple failure to appoint for an inappropriately long period, followed in turn by what may be a successful appointment, but one which has given us an NDPP completely unknown to the broad public when there may have been others equally or better suited. A change in  the appointment mechanism of necessity requires a Constitutional amendment. The Pikoli Ad Hoc Joint Committee recommended, following MinsiterEnverSurty’s advice, that Parliament should look at its role in appointment, given the fact that it plays a role in removal. Simple legislative amendment (as suggested by that committee) cannot however work because the Constitution in s 179 (1) is conclusive. Legislative amendment should however be considered for the appointment of the Deputy National Directors and the Directors  of Public Prosecution, who are also appointed by the President under the NPA Act.

9. Security of tenure: How secure is NDPP Nxasana? If Mr Nxasana is the good man we hope he is, he may lose his job just as AdvPikoli did. The present arrangements for suspension and removal are contained  in the NPA Act, s 12. In AdvPikoli’s case, they resulted in a finding by FreneGinwala that AdvPikoli was indeed fit and proper. This did not stop the then President proposing his removal for extraneous reasons, nor the Ad Hoc Joint Committee from confirming the Presidential sacking. An NDPP will not have true security of tenure until the Constitution itself determines that a President can (and must) remove him or her only upon a finding of misconduct, incapacity or incompetence by a multi-party committee of the National Assembly. I base this proposal on s 194, the Chapter Nine provision for removal. Again, other models are available. The Minister is in the process of preparing legislation giving the NPA administrative and financial, therefore institutional independence. In those circumstances, it seemed to me appropriate to make the NPA accountable to the National Assembly. The Constitutional Court has said that the office of the NDPP must be non-partisan and non-political. The same applies to the NPA overall.

10. The conflict that requires resolution The NPA was not conceived as being an independent, non-partisan authority. Former Deputy Minister Johnny de Lange said to the Ginwala Enquiry: “Whilst recognising that the NPA constituted part of the Executive, the model adopted guaranteed a measure of autonomy for the NPA. However, this model does not accord the NPA the independence the Constitution guarantees the judiciary and Chapter 9 institutions. Hence section 179 of the Constitution provides that national legislation must ensure that the prosecuting authority exercises its functions ‘without fear, favour or prejudice’.  This distinction is of paramount importance and must not be overlooked. It is on this basis that the relationship between the Minister and the NDPP must be understood. THE SAME APPLIES TO THE CONTEXT, THE NATURE AND THE EXTENT OF THE CONCEPT OF PROSECUTORIAL INDEPENDENCE WITHIN THE SOUTH AFRICAN CONSTITUTIONAL FRAMEWORK. The Minister is given overall constitutional and political responsibilities to account to the executive, legislature and public on the activities of the prosecuting authority. THIS CONSTITUTIONAL SCHEME ENVISAGES THAT THE NPA AND EXECUTIVE WILL WORK HAND IN HAND.” This is the English model, and indeed I understand the NPA Act was based on the Crown Prosecution Service. Not  even the English conduct prosecutions with this degree of executive control any more. AND  THE CONSTITUTIONAL COURT’S INTERPRETATION OF PROSECUTION WITHOUT FEAR,FAVOUR OR PREJUDICE in terms of s 179 (4) stand in absolute contrast to Adv de Lange’s view.

11. Conclusion The Constitutional Court said of section 179 (4): “There is accordingly a constitutional guarantee of independence” – not  “a measure of autonomy”. And more recently, in Glenister, that Court held by majority that  independence is a necessary attribute of a corruption-fighting mechanism...and that our law demands a body outside executive control to deal effectively with corruption. If that is true of the Hawks, how much more true is it not of the prosecuting authority that must bring the Hawks’ work to its logical conclusion? Indeed, the Concourt in Glenister suggested as much, at paragraph 188. The NPA must be independent. It follows that the appointment and removal provisions for its foremost functionary must secure that independence.

12. Proposed amendments to Section 179 of the Constitution (a) The substitution in subsection (1) for paragraph (a) of the following paragraph: “(a) a National Director of Public Prosecutions, who is head of the prosecuting authority, and is appointed by the President [as head of the executive; and] on the recommendation of a committee of the National Assembly proportionally composed of members of all parties represented in the National Assembly and approved by the Assembly by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly; and”;

13. Proposed amendments to Section 179 of the Constitution - continued (b) The insertion after subsection (1) of the following subsection: (1A) The involvement of civil society in the recommendation process may be provided for as envisaged in section 59(1)(a).”; (c) The substitution for subsection (6) of the following subsection: “(6) [The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.] (a) The National Director of Public Prosecutions may be removed from office only on – (i) the ground of misconduct, incapacity or incompetence; (ii) a finding to that effect by a committee of the National Assembly; and (iii) the adoption by the Assembly of a resolution calling for that person’s removal from office.

14. Proposed amendments to Section 179 of the Constitution - continued (b) A resolution of the National Assembly concerning the removal from office of the National Director of Public Prosecutions must be adopted with a supporting vote of at least two thirds of the members of the National Assembly. (c) The President must remove a person from office upon adoption by the Assembly of the resolution calling for that person’s removal. (d) The National Prosecuting Authority is accountable to the National Assembly and must report to the Assembly at least once a year.”