In a scathing report on the conduct of the two senior NPA officials, former Constitutional Court justice Yvonne Mokgoro recommends that Nomgcobo Jiba and Lawrence Mrwebi be removed from their positions. These are her concluding remarks.
Over the years, the NPA has been beleaguered by allegations of malfeasance and political interference. A chorus of Court decisions, civil society, media and NPA members themselves have attested to the fact that there have been serious concerns of impropriety within the institution. This is particularly troubling, given the critical role that the NPA plays in ensuring that the rule of law, the very foundation of our constitutional democracy, is both respected and safeguarded.
In the face of South Africa's painful history and its continuing struggle with inequality, it is the rule of law that holds every individual to the same standard and, in so doing, recognises the inherent dignity within every individual. Whether one wields power or is of the most vulnerable, the rule of law guarantees equal treatment. Without it, the vision of a constitutional democracy is dead in the water. Appreciating that the NPA plays a critical role in upholding the rule of law, it is crucial that it is seen to be free from all external pressures which might threaten prosecutorial independence.
NPA officials are required to be completely devoted to the rule of law without fail. Our country depends on it. As the sole entity constitutionally mandated to prosecute on behalf of the State, in the face of the scourge of crime, the confidence that the public enjoys in the NPA is what prevents individuals from taking the law into their own hands. This confidence underpins the social contract. It lies in the belief that the State can offer protection where laws are not respected.
The NPA's Code of Conduct ensures that there is public confidence in the integrity of the criminal justice process and that the NPA maintains its legitimacy. The code holds individuals within the NPA to a high standard – to uphold justice, human dignity and fundamental rights, as well as to be consistent, independent and impartial. When dealing with the Courts, prosecutors are personally accountable for their cases, may not mislead the Court or suppress evidence and should assist the Court in arriving at a just verdict – refraining from violating the decorum of the Court.
Citizens are right to expect this of the NPA and its members. In turn, the NPA must ensure that it communicates effectively with the public – for it is the public interest which the NPA must act in the name of. This must not be understood to mean that members of the NPA should play to the whims of popular opinion, but rather that they have a duty to perform their work with integrity, conscientiousness and accountability. Clandestine decision-making and impunity characterised the pre-democratic period, but has absolutely no place rearing its ugly head in this constitutional democracy.
The NPA must execute its mandate diligently and without fear, favour or prejudice. It must be independent and be seen to be independent. It has been stated before, but bears repeating here:
"'the appearance or perception of independence plays an important role' in evaluating whether independence in fact exists... This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence."
Where officials are mired in controversy and are consistently being taken on review for irrational decision-making, and being found wanting by the Courts, it damages the public confidence. The NPA must instil a strong sense of constitutional values and belief in the rule of law. When these values are internalised and fought for vociferously from within the NPA, only then will the institution enjoy the confidence of the citizenry and become the prosecuting authority that South Africans deserve.