An evaluation of the Bill requires that certain Constitutional imperatives be taken cognizance of . These include:
- The principles of transparency and accountability
- The independence of the national prosecuting authority ("NPA"), which includes independence from real or perceived political interference, and which furthermore requires security of tenure;
- The impartiality of the NPA.
APPOINTMENT OF THE NATIONAL DIRECTOR ("ND")
2.1 The need for the ND to be impartial and independent, requires that the appointment procedures concerning the ND should accord with the constitutional imperatives of transparency, independence and impartiality. Accordingly, it would be preferable that the appointment of the ND should take place in accordance with a process similar to the appointment of Judges of the Constitutional Court. Hence, it is preferable that the Judicial Service Commission should play a meaningful role in the appointment procedure of the ND.
2.2 The fact that the Constitution merely stipulates that the ND is appointed by the President as head of the National Executive (section 179(1 )(a)) does not preclude the JSC from being involved in the appointment procedure. Both as a matter of principle and of policy, the JSC should be directly involved in the appointment procedures.
2.3 The need for the involvement of the JSC is furthermore emphasized by the fact that the Bill is not prescriptive regarding the meaning of "appropriately qualified" pertaining to the person to be appointed as ND. Regarding the appointment of judicial officers, the Constitution similarly provides that "any appropriately qualified woman or man ...." may be appointed as a judicial officer. It stands to reason that the question whether a person could be regarded as "appropriately qualified" for the purposes of the appointment of judicial officers, is an issue to be determined by the JSC. No similar "screening process" is provided for, concerning the appointment of the ND.
2.4 The fact that a person shall only be appointed as a Director if he or she meets the requirement of clause 12(2), stands in stark contrast to the discretionary power of the President to decide whether a person to be appointed as ND, is "appropriately qualified", or not. By involving the JSC in the appointment procedure, a perception that the appointment procedure concerning the ND is largely arbitrary and discretionary, and accordingly does not meet the principles of transparency, independence, impartiality and ability ("appropriately qualified"), could be prevented.
APPOINTMENT AND SECURITY OF TENURE PERTAINING TO DIRECTORS:
3.1 As a matter of principle and policy, there seems to be no good reason why the JSC should also not be involved in the appointment procedures pertaining to Directors. Although, and in order to be appointed as a Director, a person must meet the criteria laid down in clause 12(2), the principles of transparency, independence and impartiality require that the JSC should play a role in the appointment of Directors.
3.2 Clause 13(3) provides that a Director may be suspended and may apparently also be removed from office in the circumstances as envisaged in clause 9(6)(a). None of the "built-in correctives" pertaining to the suspension or removal of the ND, applies to the suspension or removal of a Director (see clause 13(3) read with clause 9(5), (6)(b) to (d)). Accordingly, Parliament is not involved (as is the case with the ND) in the suspension or removal of a Director from office and the matter is left entirely to the discretion of the President. It is suggested that a procedure similar to the suspension or removal of the ND should apply to the suspension or removal of Directors.
3.3 A further factor which impinges on the independence and security of tenure of Directors, is to be found in the provisions of clause 13(1) read with clause 29(2)(a) and (b). The effect of these clauses apparently is that an Attorney-General who becomes a Director in terms of clause 29(1), but who has held that position for a period exceeding seven years, automatically ceases to hold office.
THE DETERMINATION OF PROSECUTION POLICY:
4.1 The Bill provides that the ND, with the concurrence of the Minister, shall determine prosecution policy as contemplated in section 179(5)(a) of the Constitution, or as contemplated in any other law (clause (2)(3)). This leaves the determination of prosecution policy entirely to the discretion of the ND (albeit in concurrence with the Minister).
4.2 It is suggested that, without being prescriptive in a detailed way, Parliament should have a say in the determination of prosecution policy in the sense that the Bill should contain broad and basic guidelines (and could set parameters) regarding certain principles to which the prosecution policy should adhere. As a matter of principle and policy, an issue as important as the prosecution policy should not entirely be left to the discretion of two people, however competent they may be. Furthermore, as the prosecution policy should be devised with a view to address general (and not specific or even individual) instances, Parliament should have a say in providing broad guidelines and objectives in that regard.
5 1 Clause 5(1)(c)
The generality of this clause is impeded by the words appearing at the end thereof viz "... in respect of any prosecution". It is suggested that these words be deleted from the sub-clause.
5.2 Clause 1(4) of the Bill read with the suggested amended section 111 of the Criminal Procedure Act, Act No.51 of 1977, has the effect that the National Director may determine the Court where criminal proceedings shall be conducted and commenced.. In that way, the ND is empowered to designate the trial Court and hence exclude the jurisdiction of a Court which would normally have had jurisdiction to hear a particular matter. Except for highly extraordinary circumstances, it is not clear how this power of the ND i.e. to designate particular trials to particular Courts (and thus exclude the jurisdiction of other Courts which might normally have had jurisdiction to hear the matter) could be said to be in the interests of the administration of justice (clause 11(4)). If this clause is persisted with' it is suggested that, at the very least, Parliament should lay down guidelines as to when and under what circumstances the exclusion of any Court's jurisdiction could be considered to be "in the interests of justice".
5.3 Accountability to Parliament:
The current structure of the Bill, as well as the particular provisions contained in inter alia, Clause 21, seem to suggest that the NPA will not be directly accountable to Parliament, but will only be accountable to the Minister. As a matter of policy, it may be advisable that the Bill should provide for a mechanism in order to also make the NA directly accountable to Parliament.