How to stop political interference in prosecutions

Why has the National Prosecuting Authority (NPA) failed in an almost decade-long battle to prosecute President Jacob Zuma on 783 charges that include fraud, racketeering and corruption relating to the controversial post-apartheid arms deal? It’s a question tackled by Jameelah Omar, lecturer in Criminal Justice, Department of Public Law, University of Cape Town, in an article on The Conversation site. The real problem, she says, is that political pressure can get in the way of prosecution. Members of the executive, including the President, can interfere with the National Director of Public Prosecutions. Omar suggests establishing a separate special prosecuting office that deals only with political cases – that is, those involving members of the executive and the legislature. The usefulness of a special prosecutor was stress tested in 1973 during the US President Richard Nixon debacle. The purpose is to create a greater measure of independence, although the Nixon case also showed that it can be subject to political interference. He had three removed. Watergate nevertheless illustrated why a separate prosecuting capacity targeting the executive arm of government is important. But how would a special prosecutor be appointed in South Africa, asks Omar. There are various options, she suggests. It could, for example, be left to the Chief Justice or Parliament to decide when a matter demands the appointment of a special prosecutor. A system like this wouldn’t completely remove the potential for interference, but it would ensure it was minimised. It would also free the director from being embroiled in political battles, enabling them to concentrate on their core job which should be to increase the overall effectiveness of the prosecuting authority as well as public confidence in its abilities. As things stand, argues Omar, the NPA is only quasi-independent. This is for two reasons.The first is that the language describing the independence of the prosecuting authority in the Constitution isn’t very clear. In terms of the Constitution, the Minister of Justice and Constitutional Development has final responsibility over the prosecuting authority. Case law has held that the Minister can’t instruct the prosecuting authority to prosecute or not, but is entitled to be kept informed about cases that the public might be interested in or that involve important aspects of legal authority. Despite this innocuous clarification, ministerial oversight leaves open a gap for interference, she argues. The other system flaw is that there’s room for political interference in the way in which the director is appointed – by the President without any need for consultation. So how can the independence of the director be increased? The only effective way, suggests Omar, is to remove the incentive for political interference over the director.