Editor's note: Farai Diza is a veteran journalist with over 10 years experience covering a diversified portfolio of topics. Diza weighs in on the National Prosecuting Authority's call for independence.
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The National Prosecuting Authority (NPA) has over the past few months successfully conducted its duties without fear, favour or prejudice. This has led to the conviction of many influential and politically-connected individuals in recent weeks for their alleged involvement in tender-related corruption.
Powered by the constitution, the NPA is mandated to ensure that victims of crime get justice. They have given South African's something to smile about.
The National Prosecuting Authority has the power to institute and conduct criminal proceedings on behalf of the state, carry out any necessary functions incidental to instituting and conducting such criminal proceedings and discontinue criminal proceedings.
The NPA has now sent out calls to become independent from the Department of Justice. This has been seen by many law experts as a critical and bold move which should be taken seriously. Under the current scenario, a minister holds the final responsibility.
The reason why the NPA is gunning for more independence is quite simple: over the past decade or so, the institution, before it underwent leadership changes in 2019, was seen as politically-abused.
Evident to the above statement is the recent report that was compiled by retired Constitutional Court Justice Yvonne Mokgoro and two co-panellists — who probed two former senior prosecutors, Nomgcobo Jiba and Lawrence Mrwebi.
In their 2019 report, they wrote that, “The recent history of the NPA demonstrates that [it] may be vulnerable to executive and political interferences.”
The scathing report went on to state that while the Constitution, the NPA Act and other instruments provide some safeguards for the independence of the prosecuting authority, it is worth noting the word “independence” is not used expressly in relation to the NPA.
The chief word "independent" is a great deal in this regard. Independence would remove the shackles of "political connotations" which may prevent the NPA from fully executing its duties.
It is worth noting that the NPA wants to conduct its business within the confines of the constitution and function more like a Chapter Nine Institution. This would see it being financially and administratively independent.
According to the NPA spokesperson, Sipho Ngwema, the institution also desires to have its own accounting officer and to report directly to Parliament:
“Hypothetically, if there were to be serious differences with regard to prosecutorial decisions taken by the NPA, those could be adversely affected because the executive can manipulate that process.
"This may dent and compromise the perception of independence of the NPA. The NPA can be rendered powerless. Independence must mean no undue influence or pressure."
The political divide is a constantly-changing one. When wings of change surge and senior political figures descend, one would expect the NPA to act not only without fear, favour or prejudice but also independently.
The public protector, for instance, is allocated a budget through the Department of Justice — also a long-standing issue; the auditor-general is funded through revenue earned from auditing the public sector. These institutions too are not above being perceived as politically driven as is the case with Public Protector Busisiwe Mkhwebane.
The NPA is mandated to protect the integrity of South Africa's judiciary. If they are to become independent then they will become the custodians of the judiciary in a perfect way.
Disclaimer: The views and opinions expressed here are those of the author and do not necessarily reflect the official policy or position of Briefly.co.za.
Earlier, Briefly.co.za reported that National Director of Public Prosecutions Shamila Batohi said the National Prosecuting Authority wants to use the skills and capacity built up in the Zondo Commission as it does not possess such expertise.
Batohi, however, said the prosecutions authority does not have the budget to afford these skills. She told Parliament’s Justice Committee that the NPA and the Hawks had been stripped of the ability to investigate highly complex corruption cases.
Batohi said: "The skills are very rare. There's [sic] very few that have these skills to investigate very complex corruption matters."
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