Public frustration over the lack of prosecutions for those involved in the grand corruption that characterised state capture is understandable. Seeing those implicated going to jail will be immensely gratifying, but that is not the only measure of success when it comes to enhancing justice in South Africa. Rebuilding our National Prosecuting Authority (NPA) to strengthen overall public safety and serve the millions of victims of crime and injustice is as if not more important, writes Gareth Newham
When Advocate Shamila Batohi was sworn in as the new National Director of Public Prosecutions (NDPP) in February 2019, there was general widespread enthusiasm. At the time she said that “South Africans are watching the NPA, and hoping we can return to a place where justice wins and the powerful are held to account”.
As we approach February 2020, there is less public enthusiasm about the NPA than a year ago. The main reason is that we have a very good idea of the culprits involved in the massive looting of public funds through the efforts of dedicated investigative journalists, civil society organisations and official judicial and parliamentary inquiries.
But apart from a handful of cases, most of the main players are currently not facing criminal charges. For some people the lack of prosecutions means that there has been no improvement in the NPA. Initial enthusiasm that things would improve under a new administration is waning.
The NDPP has sought to demonstrate that she understands this by saying, “The prosecution of those implicated in state capture is vitally important to put an end to an era of impunity for the powerful, and to ensure justice is done.”
But she is also confronted with the reality of how the years of state capture severely undermined the NPA.
When Batohi joined the NPA, it had an overall staff vacancy rate of 20 percent while the specialised units responsible for prosecuting complex corruption matters, suffered almost a third fewer prosecutors than they previously had.
This was the result of years of continuous underfunding while former NDPPs were either instigators of, or distracted by, political interference and conflict amongst the upper echelons of the organisation.
As the Mokgoro Commission of Inquiry that resulted in the dismissal of disgraced former Deputy National Director of Public Prosecutions (DNDPP) advocates Nomgcobo Jiba and Special Director Lawrence Mrwebi revealed, integrity and adherence to professional standards had all but gone out of the window.
As a result, Batohi took the helm when the number of cases finalised by the NPA in court with a verdict had dropped by 17%.
Moreover, convictions for corruption involving more than R5 million had more than halved from 39 to 17 and the amount of the proceeds of crime attached had stagnated.
Consequently, confidence in the NPA was at an all-time low. The Victims of Crime Survey conducted by Statistics South Africa showed that over the five years ending in 2017/18, public approval in the courts had dropped by a substantial 23%.
In 2017 the Institute for Justice and Reconciliation found that only 30% of the people they surveyed trusted the NPA.
The challenge therefore facing the NPA was not only to ensure that high profile crooks ended up in prison.
It was much greater than that and involved the difficult long-term task of rebuilding a national institution to bring justice to the entire country.
Moreover, it required putting safeguards in place to prevent the NPA from falling victim to capture in the future. To only focus on a handful of cases at the expense of strengthening the foundation of our constitutional democracy, that all are equal before the law, could never be justified.
To ensure that high profile crooks receive their just desserts, the President created the specialised and dedicated Investigative Directorate (ID) in the NPA.
It is working with skilled investigators from the Hawks and independent analysts and lawyers to go after the rich and powerful with their expensive lawyers.
It will take time but hopefully, given what the Head of the ID, Hermione Cronje, has recently said, many amongst the criminally orientated political elite will find themselves in the dock.
In addition to this, the NPA has been involved in various initiatives to rebuild itself as an institution dedicated to reclaiming its status as the lawyers for the people.
Despite its leadership challenges, there are numerous excellent, professional and hard-working prosecutors and administrators in the organisation.
Due to their efforts, many hundreds of thousands of cases continued to be successfully prosecuted across the country each year under very difficult circumstances.
The NDPPs first step therefore was to engage the staff who are the most important resource that the NPA has.
This involved taking road trips across the country so she could hear first-hand of the challenges facing those working at the coalface of criminal justice.
In addition, an internal staff climate survey was undertaken to provide every staff member with the opportunity to anonymously raise their daily experiences, concerns and practical recommendations on what could be done to improve the organisation.
These survey results fed back to senior management as part of a three-day strategic planning conference held in May.
This was the first time in over a decade that the top 120 managers of the NPA had the opportunity to gather in one place to directly engage with the NDPP about the vision for the organisation and formally table their suggestions to rebuild this vital institution.
Subsequently, similar events were held in all nine provinces across the country to ensure that as many of the over 4 600 staff as possible are seized with thinking about and actively contributing to strengthening the NPA.
While this was going on the NDPP instructed that a detailed and rigorous analysis of the NPA budget and staff resourcing was undertaken to determine to what extent, if at all, there was a shortage.
This analysis found that indeed the budget of the NPA had been neglected compared to the rest of the criminal justice system and that the organisation had been haemorrhaging staff generally but particularly in concerning its specialised functions.
This analysis enabled her to make a strong and evidence-based argument to the Treasury for additional funding. This paid off when the NPA was awarded an additional R1.3 billion by the Finance Minister.
This has enabled the NPA to start hiring hundreds of new prosecutors, and promoting those who have been in acting positions for years.
One of the reasons that the NPA has suffered so much interference over the years has been that it is insufficiently independent.
It is considered a programme within the Department of Justice and Correctional Services and therefore does not control its own budget.
This has in the past led to historical friction between the NDPP and the Director General of the Justice Department.
The NPA is therefore currently finalising submissions to the Minister of Justice to decouple itself from the Department of Justice, so that it has its own accounting officer and can negotiate its budgets directly with National Treasury.
This should prevent future scenarios where the NPA is weakened through the kind of under-resourcing that the NPA has experienced in the past decade.
To tackle high level corruption, and organised crime cases, typically characterised by complex commercial criminality requires specialised skills.
Even more common forms of criminal cases require prosecutors to be skilled in the law.
The NPA is revisiting its professional development and training programmes to ensure prosecutors and their support staff have the training and experience to get the job done.
To attract the right calibre of people, the NPA must become an employer of choice for law graduates. Therefore, much work has been done on the reintroduction of the important Aspirants Prosecutor Programme that was shut down five years ago due to a lack of resources.
The long-term success of the NPA will be determined by the calibre of its human resources who will need cutting edge skills to face a wide range of existing challenges such as gender-based violence and new and evolving forms of criminality such as trans-national organised crime, cybercrime and human trafficking.
At the heart of the NPA’s ability to restore public trust is accountability.
The NPA has to account for its actions, especially around the effective use of resources and being able to justify its decisions.
In the first instance it is refining it’s performance measures to provide a more honest account of its activities and impact. In the second instance, to ensure that it is able to respond to the concerns of our public, efforts are underway to establish an Office of Complaints and Ethics to deal effectively with service complaints and corruption-related allegations against members of the NPA.
There is a lot going on to strengthen the NPA to ensure it serves as a solid foundation for the future of our country. Much more work is needed to achieve this and there will be many obstacles along the way.
Ultimately, it is important that we all pay close attention to the NPA if we are able to support the positive initiatives and raise the alarm if things go off track.
While there are many challenges facing South Africa, many of them will not be solved sustainably unless we can build a strong democratic foundation where everyone is equal before the law.
– Gareth Newham is Head of the Justice and Violence Prevention Programme at the Institute for Security Studies (ISS)