The appointment of a national attorney-general could avoid a recurrence of the ‘McNally issue’, argue Dr Jeremy Sarkin and Suzie Cowen
THE criminal justice system is in crisis. It lacks legitimacy and is seen as ineffective. It is in this context that the danger of giving attorneys-general independence, without creating mechanisms for effective accountability, has resurfaced as a crucial debate amidst allegations that KwaZulu-Natal Attorney- General Tim McNally has failed to bring prosecutions for political reasons.
Whether or not the allegations are true, perceptions that decisions to prosecute are motivated by political reasons seriously undermine the legitimacy of the criminal justice system. Legislation should be re-examined to ensure that AGs operate without political bias and that they can be brought to book if necessary.
When the independence of the office was entrenched by the former government in 1992, the concern was those selected for the job were people sympathetic to that government. Now we find ourselves in the undesirable position where, despite allegations that AGs are failing to serve the interests of justice, there are no remedies against that failure.
Although there are general mechanisms for accountability, there is no way to ensure that the day-to-day exercise of power, which concerns matters of vital public concern, is not being abused.
Two mechanisms to balance the twin requirements of independence and accountability should be considered seriously: creating the office of a national AG; and appointing two civilians to join the existing AGs in their deliberations.
The proposal to create the office of national AG would address some of the current problems. The national AG would be responsible for ensuring that there is a uniform policy for prosecutions throughout the country and provincial AGs would be answerable to him or her. The national AG would be empowered to receive complaints about the provincial AGs and to take appropriate action.
Present AGs have not supported this proposal on the basis that it would once again subject them to “political tutelage”. However, this charge can be met by including mechanisms to ensure that the office is not abused.
Firstly, the national AG should not be given the power to prevent a prosecution, but only to override a decision not to prosecute. Giving the office the power to override a decision not to prosecute would be an additional means of ensuring that prosecutions are carried out despite their political nature. However, the incumbent would not be able to prevent such prosecutions taking place.
The appointment process should be designed to prevent a political appointment. Removing the power of selection from party political players would afford an additional guarantee that the incumbent would be able to serve independently and effectively.
As the KwaZulu-Natal non-governmental organisation coalition proposes, the Judicial Services Commission should be responsible for selecting the incumbent and an open, transparent procedure should be followed. Public nominations should be invited, interviews should be open to the public, and the public should ge given an opportunity to object to a proposed candidate.
The AG should serve only for a specific term, possibly four years. A limited term of office is crucial and such term should be renewable only if the power to renew it lies with the Judicial Services Commission and then only after a reviewing process.
The second mechanism would involve the appointment of a small civilian panel (possibly two people) in each province who would consider prosecutions together with the provincial AG. This would ensure that the AG did not make unilateral decisions and applied his or her mind thoroughly to prosecutions. It would also ensure that community interests were considered, and would promote accountability and transparency in an office which is and should be independent.
The time is now ripe to confront the legacy of political bias which has pervaded prosecutions and find solutions which ensure that the interests of justice are served.
Dr Jeremy Sarkin is National Chairperson, Human Rights Committee of South Africa, and Suzie Cowen is Legislation Monitor, Human Rights Committee of South Africa