When the Constitution was negotiated, there were two factors that would make changes to its section 179 – on the National Prosecuting Authority (NPA) – necessary.
We did not anticipate a president who is not a completely disinterested party and whose power of appointment of the national director of public prosecutions consequently affects the perception of prosecutorial independence.
Second, there was "very little guidance on an international level on the prosecutorial role", as Professor Jeffrey Jowell, who leads the Bingham Centre in England, said in a lecture at the University of Cape Town in 2010.
Such guidance was already in the making and would emerge from the United Nations and the Council of Europe, including its Venice Commission – which was formed in 1990 to assist constitution-making in the countries of the former Soviet Union. On prosecution, the guidance was away from the party-controlled Prokuratura and towards independence.
Elsewhere, the Council of Europe's Recommendation 19 of 2000 and the International Association of Prosecutors' 1999 Standards of Professional Responsibility tended in the same direction.
By 2008, ANC leaders were calling for changes. Kgalema Motlanthe, then president, suggested that the Judicial Service Commission should appoint the national director of public prosecutions.
In 2007, President Thabo Mbeki had appointed Frene Ginwala to conduct an enquiry into national director of public prosecutions Vusi Pikoli's fitness to hold office.
Then Justice Minister Enver Surty proposed – and MPs from all parties sitting on the ad hoc committee, which had to confirm or reject Pikoli's dismissal, agreed – that Parliament should look at its role in appointment, and that the concept of ministerial responsibility was undefined and needed attention.
Appointing power
If MPs had followed through, we would at least have had a mechanism to check and balance the appointing power of the head of the national executive, who has promised the Constitutional Court that he will appoint a permanent director of public prosecutions before the end of August.
I am assuming that Surty and the justice MPs had in mind parliamentary confirmation or rejection of the president's chosen appointee. Although that would constitute an improvement on the current constitutional provision, there is always the danger that the majority of MPs would automatically confirm the president's choice.
After all, the ad hoc committee upheld the president's decision to sack Pikoli despite Frene Ginwala's finding that he was indeed fit and proper for the post. So much for security of tenure under the current system.
That is why I am proposing (in the Constitution 18th Amendment Bill, a private member's Bill that has been introduced in the National Assembly) that the power of appointment should be taken out of the president's hands and placed in the National Assembly.
Removal (which currently does not appear in the Constitution but only in the legislation) should likewise rest on the recommendation of the assembly and should occur only after a finding of misconduct, incapacity or incompetence by one of its own committees.
An alternative would be the Irish model, in which the assembly convenes a selecting committee consisting of the chief justice, the chairperson of the general council of the Bar, the president of the law society, the secretary to the government and the senior legal assistant in the office of the attorney general. The committee recommends suitable candidates, and the government appoints its choice from among them.
The Venice Commission favours fully nonpolitical bodies for selection and dismissal, composed of persons appointed ex officio. A near equivalent in South Africa would be the committee that recommends a long-list of independent electoral commissioners to the National Assembly for its final selection. It includes the chief justice, the public protector and the South African Human Rights Commission chairperson or their delegates.
Part and parcel
Appointment and removal provisions, such as security of tenure, form part and parcel of the degree of independence an institution is required to hold. It is the degree of independence the NPA should enjoy that is the real question.
I have used the Chapter Nine appointment and removal provisions for convenience, and because the justice ministry is in the process of amending the NPA Act to give it institutional independence, I have also made the NPA accountable to the National Assembly.
But the prosecuting authority in our legal order sits under the executive branch. It is not part of the judicial branch as it is in many European jurisdictions (which is why I have not followed Motlanthe or the Namibian example).
I am not proposing an amendment of section 179 (5)(a), under which the director of public prosecutions determines policy in concurrence with the justice minister. I think that is the proper way in which an elected government can set policy of general application on the public interest.
I am, however, proposing the outright deletion of section 179 (6), which says that the justice minister must exercise final responsibility over the prosecuting authority.
Because that subsection is capable of being interpreted as giving the political head of the NPA – the minister – the final decision on individual prosecutions. That is how the previous justice minister read it when she instructed Pikoli to stop any proceedings against the now former police chief Jackie Selebi.
I do not see how that is to be reconciled with the prosecutorial independence the Constitutional Court gave the NPA in the certification judgment.
Constitutional guarantee
Section 179 itself in subsection (4) says only that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. It was the Constitution's certification judgment that gave the full trumpet blast: "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."
What is in the NPA Act in section 33 basically allows the minister to ask for information, and reasons for decisions, and the current minister does not in my view go beyond that.
But if section 179 (6) is to be consonant with the certification judgment, we should surely spell out that the minister may not give instructions to prosecute or not, or to terminate.
Or better still, just omit it. Because it looks as though somebody, somewhere, is indeed giving instructions. And I think the truth is that section 179 (6) is there to ensure that the NPA has no more than "a measure of autonomy", to use the words of then deputy justice minister Johnny de Lange to the Ginwala enquiry.
"The distinction" [between this measure of autonomy and full independence] "is of paramount importance … it is on this basis that the relationship between the minister and the director of public prosecutions must be understood. The same applies to the context, the nature and the extent of the concept of prosecutorial independence … this constitutional scheme envisages that the NPA and the executive will work hand in hand."
In short, it is the British model, and I am told that the Crown Prosecution Service was consciously used as the model for the NPA.
In the British model, there is an independent director of public prosecution but also the attorney general, a government minister with some judicial attributes. The attorney general enjoys superintendence, not only of prosecution policy but also of difficult, sensitive and high-profile cases.
The British position is that a limited number of offences can only be taken to court with the consent of the director of public prosecutions; and there are also certain offences that should only be prosecuted with the consent of the attorney general.
Left, right and centre
Ginwala took the view that the minister's right to request information means that the corollary must apply, namely that the director of prosecutions must inform the minister of any significant case, the more so if matters affect national security, without being bound by any input from the minister.
But is this what we want, when politically connected cases appear to be dropped left, right and centre?
There are two possible models in the common-law world, to quote Jowell: the first comprises those who give complete independence to the prosecuting authority – Ireland, Israel, India and some Canadian provinces and Australian states. The second model is the one adopted by the United Kingdom, Australia and New Zealand, where 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 the other directors of prosecutions accordingly.
Jowell pointed out that section 179 (4) seems to indicate a model of prosecutor of the independent kind, but asked whether this was confirmed by section 179 (6), which gives the minister final responsibility.
Professor Philip Stenning of Keele University, quoted by Ginwala, has said that South Africa seems to have adopted both models simultaneously.
We can't afford to fool around with this ambiguity. What is the use of the Constitutional Court, by a narrow majority – in the challenge of Hugh Glenister to the disbandment of the Hawks policing unit – deciding in respect of the police that on a "common sense approach our law demands a body outside executive control to deal effectively with corruption" if the prosecuting authority isn't going to follow through because it is subject to executive influence?
I say delete the ministerial final responsibility outright, and confine his or her powers to concurrence in the setting of prosecution policy.
Dene Smuts is the Democratic Alliance spokesperson on justice and constitutional development