The NPA’s discretion and the limited relevance of such discretion
Is the power afforded to the NPA under section 179(2) of the Constitution discretionary and, if so, what is the relevance of this fact?
In the second brief of this series, I explained that duties and discretions are not, conceptually speaking, mutually exclusive. I identified three ways in which a person who has a duty to act might still properly be described as having a discretionary power, namely, means, equivalence and reviewability. It is the third of these that is most relevant to section 179(2).
Regarding this third type of discretion, it will be recalled that the NPA may have a duty to prosecute if certain conditions are met, but that the polycentric character that generally accompanies its decision-making, including considerations of public interest and policy, may mean that third parties, like the courts, have limited power to second-guess its determination as to whether these conditions have been met. It is this type of discretion that many jurisdictions, including our own, afford to prosecuting authorities. [1] Thus, when the courts say that the NPA has discretion in its exercise of the power to institute criminal proceedings, this does not mean that the NPA has ‘complete’ discretion in deciding whether to prosecute. It does not have a ‘privilege’ in its exercise of power. Rather, it means that the courts are limited in their review powers—that is, courts may only overturn a decision to prosecute or a decision not to prosecute when this decision is unlawful or irrational.
Why is the NPA afforded discretion? In short, the courts are not well-placed, relative to the NPA, to make decisions of the kind relating to decisions to prosecute. The NPA has ‘reviewability’ discretion because they typically make better decisions. As a matter of principle, it is appropriate to afford the NPA latitude of this kind. Courts have limited practical competence when it comes to complex polycentric issues. Thus, they should be wary when substituting their view for that of the NPA. The significance of this fact, though, must not be overstated, for the latitude afforded by this discretion is tempered in at least two ways.
First, reviewability discretion does not preclude scrutiny of decisions to prosecute or not to prosecute. Courts may overturn unlawful and irrational decisions. Courts may review and set aside decisions tainted in this way because reviewability discretion is afforded to the NPA because they typically make better decisions than would judges. When a decision is clearly wrong—irrational or unlawful—the reason for affording such discretion falls away. Second, and more important for the purposes of this brief, the NPA has a duty to institute criminal proceedings when a prima facie case exists against an alleged perpetrator of crimes against humanity, war crimes or genocide. The fact of the NPA’s discretion does not mean that it does not have a duty to prosecute. This is because it has reviewability discretion, not subjective discretion (or, to use the Hohfeldian term discussed in the third brief, ‘privilege’).
In the next section, I will explain why the NPA has a duty to prosecute. I will also identify the source of this duty.
Regarding this third type of discretion, it will be recalled that the NPA may have a duty to prosecute if certain conditions are met, but that the polycentric character that generally accompanies its decision-making, including considerations of public interest and policy, may mean that third parties, like the courts, have limited power to second-guess its determination as to whether these conditions have been met. It is this type of discretion that many jurisdictions, including our own, afford to prosecuting authorities. [1] Thus, when the courts say that the NPA has discretion in its exercise of the power to institute criminal proceedings, this does not mean that the NPA has ‘complete’ discretion in deciding whether to prosecute. It does not have a ‘privilege’ in its exercise of power. Rather, it means that the courts are limited in their review powers—that is, courts may only overturn a decision to prosecute or a decision not to prosecute when this decision is unlawful or irrational.
Why is the NPA afforded discretion? In short, the courts are not well-placed, relative to the NPA, to make decisions of the kind relating to decisions to prosecute. The NPA has ‘reviewability’ discretion because they typically make better decisions. As a matter of principle, it is appropriate to afford the NPA latitude of this kind. Courts have limited practical competence when it comes to complex polycentric issues. Thus, they should be wary when substituting their view for that of the NPA. The significance of this fact, though, must not be overstated, for the latitude afforded by this discretion is tempered in at least two ways.
First, reviewability discretion does not preclude scrutiny of decisions to prosecute or not to prosecute. Courts may overturn unlawful and irrational decisions. Courts may review and set aside decisions tainted in this way because reviewability discretion is afforded to the NPA because they typically make better decisions than would judges. When a decision is clearly wrong—irrational or unlawful—the reason for affording such discretion falls away. Second, and more important for the purposes of this brief, the NPA has a duty to institute criminal proceedings when a prima facie case exists against an alleged perpetrator of crimes against humanity, war crimes or genocide. The fact of the NPA’s discretion does not mean that it does not have a duty to prosecute. This is because it has reviewability discretion, not subjective discretion (or, to use the Hohfeldian term discussed in the third brief, ‘privilege’).
In the next section, I will explain why the NPA has a duty to prosecute. I will also identify the source of this duty.
The duty to prosecute genocidaires, war criminals and other enemies of all humankind
Does the NPA have a duty to prosecute foreign nationals who prima facie appear to have committed genocide, crimes against humanity and war crimes?
Before answering this question directly, I must first dispose of a possible of objection to the relevance of the answer. Someone might say that the Constitutional Court has already considered this question. It held that the NPA does not have a duty, but ‘just’ has a discretionary power. There are two answers to this objection. First, the statement by Majiedt AJ was obiter, which means that it is not binding on lower courts. It was obiter because the finding was not necessary to arrive at an answer to the actual question before it, namely, whether the SAPS has a duty to investigate allegations of crimes against humanity. Second, even if the statement is binding on lower courts, the Constitutional Court is not bound by its own decisions. If it realises its mistake, it may correct it in a future case. Given the peripheral nature of this statement to the issue before the court, the court would be not be loathe to acknowledge its error (if, of course, it thinks that it was mistaken).
The way is now open to consider whether the NPA has a duty to prosecute foreign nationals of the type under consideration.
The short answer is that the NPA does have this duty. It has this duty not just because of international law (though, international law magnifies or duplicates this duty). [2] Nor is it a duty that the NPA has simply because South Africa signed and ratified the Rome Statute and domesticated it through the ICC Act (though, signature, ratification and domestication does recognise, concretise and particularise this duty). Rather, it has this duty because it is the prosecuting authority contemplated by section 179(2) of the Constitution, and because South Africa is founded on the values of human dignity and the advancement of human rights and freedoms, [3] and is committed to the building of ‘a united and democratic’ nation that is ‘able to take its rightful place as a sovereign state in the family of nations’. [4]
For South Africa to respect human dignity and advance rights and freedoms, and for us to take our rightful place in the family of nations as a ‘responsible global citizen’, [5] the NPA must, where appropriate, prosecute alleged perpetrators of crimes against humanity, war crimes or genocide. It must prosecute such persons even when they are foreign nationals. This is because such crimes offend not just the laws of the states of which these individuals are citizens or international law to which we are bound. They offend our basic law: the Constitution. They offend its raison d’être, expressed by President Nelson Mandela during the course of our transition to constitutional democracy:
Before answering this question directly, I must first dispose of a possible of objection to the relevance of the answer. Someone might say that the Constitutional Court has already considered this question. It held that the NPA does not have a duty, but ‘just’ has a discretionary power. There are two answers to this objection. First, the statement by Majiedt AJ was obiter, which means that it is not binding on lower courts. It was obiter because the finding was not necessary to arrive at an answer to the actual question before it, namely, whether the SAPS has a duty to investigate allegations of crimes against humanity. Second, even if the statement is binding on lower courts, the Constitutional Court is not bound by its own decisions. If it realises its mistake, it may correct it in a future case. Given the peripheral nature of this statement to the issue before the court, the court would be not be loathe to acknowledge its error (if, of course, it thinks that it was mistaken).
The way is now open to consider whether the NPA has a duty to prosecute foreign nationals of the type under consideration.
The short answer is that the NPA does have this duty. It has this duty not just because of international law (though, international law magnifies or duplicates this duty). [2] Nor is it a duty that the NPA has simply because South Africa signed and ratified the Rome Statute and domesticated it through the ICC Act (though, signature, ratification and domestication does recognise, concretise and particularise this duty). Rather, it has this duty because it is the prosecuting authority contemplated by section 179(2) of the Constitution, and because South Africa is founded on the values of human dignity and the advancement of human rights and freedoms, [3] and is committed to the building of ‘a united and democratic’ nation that is ‘able to take its rightful place as a sovereign state in the family of nations’. [4]
For South Africa to respect human dignity and advance rights and freedoms, and for us to take our rightful place in the family of nations as a ‘responsible global citizen’, [5] the NPA must, where appropriate, prosecute alleged perpetrators of crimes against humanity, war crimes or genocide. It must prosecute such persons even when they are foreign nationals. This is because such crimes offend not just the laws of the states of which these individuals are citizens or international law to which we are bound. They offend our basic law: the Constitution. They offend its raison d’être, expressed by President Nelson Mandela during the course of our transition to constitutional democracy:
South Africa’s future foreign relations will be based on our belief that human rights should be the core concern of international relations, and we are ready to play a role in fostering peace and prosperity in the world we share with the community of nations . . . The time has come for South Africa to take up its rightful and responsible place in the community of nations. [6]
The duty to prosecute ‘international and heinous crimes’ [7] of this nature is not ‘created’ [8] by international law or by domestic legislation, for the duty is immanent in the structure, text and values of the Constitution. The source of this duty is the Constitution itself.
Thus, the fact that we might withdraw from the ICC is beside the point, at least insofar as our legal duty to prosecute genocidaires, war criminals and other enemies of all humankind is concerned. The ICC supplements the duty of the state to prosecute such persons; it does not create this duty. [9] Whilst politically speaking we might be concerned about the withdrawal decision, legally speaking we have nothing to fear.
Thus, the fact that we might withdraw from the ICC is beside the point, at least insofar as our legal duty to prosecute genocidaires, war criminals and other enemies of all humankind is concerned. The ICC supplements the duty of the state to prosecute such persons; it does not create this duty. [9] Whilst politically speaking we might be concerned about the withdrawal decision, legally speaking we have nothing to fear.
The scope of the duty to prosecute
In the previous section I said that the NPA must ‘where appropriate’ prosecute foreign nationals who prima facie appear to have committed crimes against humanity, war crimes or genocide. In what circumstances will it be appropriate for the NPA to prosecute?
Guidance can be sought from the SALC decision. There, the court held that the duty of the SAPS to investigate allegations of crimes against humanity is subject to two limiting principles. First, there is no duty to investigate if the directly affected national state is able and willing. Second, undertaking the contemplated investigation must be reasonable and practicable. Both of these principles are likely to be extended to any duty to prosecute. [10]
When will it be practicable and reasonable to prosecute? Many considerations will go into this evaluation. I will not discuss them here, save to make a few obvious points.
There is a duty to prosecute if there is a reasonable prospect of success. Sometimes, this duty will be defeated by other conflicting public interest considerations. [11] Any evaluation of what is required by the public interest—that is, of what is practical and reasonable—will include a consideration of ‘the nature and seriousness of the offence’ and the ‘interests of the broader community’. [12] In cases involving crimes against humanity, war crimes or genocide, the public interest will almost always support the prosecution of the alleged perpetrators. It is an interest to which our Constitution commits us and which we ‘dare not relinquish’, [13] for reasons of naked self-interest or even conventional and otherwise legitimate economic concerns. We have long-since rejected such a ‘narrow, chauvinistic approach’ [14] in our engagement with the world. The Constitution requires the state and all of its organs to prevent ‘impunity’. [15] Importantly, this duty exists even in the absence of international treaties and domestic legislation requiring South Africa to prosecute. [16]
Guidance can be sought from the SALC decision. There, the court held that the duty of the SAPS to investigate allegations of crimes against humanity is subject to two limiting principles. First, there is no duty to investigate if the directly affected national state is able and willing. Second, undertaking the contemplated investigation must be reasonable and practicable. Both of these principles are likely to be extended to any duty to prosecute. [10]
When will it be practicable and reasonable to prosecute? Many considerations will go into this evaluation. I will not discuss them here, save to make a few obvious points.
There is a duty to prosecute if there is a reasonable prospect of success. Sometimes, this duty will be defeated by other conflicting public interest considerations. [11] Any evaluation of what is required by the public interest—that is, of what is practical and reasonable—will include a consideration of ‘the nature and seriousness of the offence’ and the ‘interests of the broader community’. [12] In cases involving crimes against humanity, war crimes or genocide, the public interest will almost always support the prosecution of the alleged perpetrators. It is an interest to which our Constitution commits us and which we ‘dare not relinquish’, [13] for reasons of naked self-interest or even conventional and otherwise legitimate economic concerns. We have long-since rejected such a ‘narrow, chauvinistic approach’ [14] in our engagement with the world. The Constitution requires the state and all of its organs to prevent ‘impunity’. [15] Importantly, this duty exists even in the absence of international treaties and domestic legislation requiring South Africa to prosecute. [16]
Conclusion
In the introduction to the first brief of this series, I indicated that the series was inspired by the ANC’s decision to withdraw South Africa as a member of the ICC and the accompanying announcement of President al-Bashir’s impending visit. As a spectator, it is difficult not to get the impression that the decision and visit are related.
The decision to withdraw cannot be implemented until after his visit (should he visit). Even if it were otherwise, however, this would not have an effect on our obligations under the Rome Statute that were acquired prior to withdrawal. The withdrawal decision has no effect on what we must do, legally speaking, when he arrives.
But, if South Africa does withdraw, what does that mean for the future, if foreign nationals who visit our shores prima facie appear to have committed crimes against humanity? Answering this question has been the focus of this series of briefs. The answer, in short, is that the NPA has a duty, sourced in the Constitution, to arrest and prosecute persons of this type. Whilst it may decide not to prosecute if doing so would be contrary to the public interest, the onus is on it to justify this decision. Where the foreign national is accused of murder, rape, torture, extermination, forced displacement and pillaging, all of which led to the death of more than 300,000 people and the displacement of over 2.5 million people, this will be difficult burden to discharge.
The decision to withdraw cannot be implemented until after his visit (should he visit). Even if it were otherwise, however, this would not have an effect on our obligations under the Rome Statute that were acquired prior to withdrawal. The withdrawal decision has no effect on what we must do, legally speaking, when he arrives.
But, if South Africa does withdraw, what does that mean for the future, if foreign nationals who visit our shores prima facie appear to have committed crimes against humanity? Answering this question has been the focus of this series of briefs. The answer, in short, is that the NPA has a duty, sourced in the Constitution, to arrest and prosecute persons of this type. Whilst it may decide not to prosecute if doing so would be contrary to the public interest, the onus is on it to justify this decision. Where the foreign national is accused of murder, rape, torture, extermination, forced displacement and pillaging, all of which led to the death of more than 300,000 people and the displacement of over 2.5 million people, this will be difficult burden to discharge.
Matthew Kruger
Legal Researcher
matthew@hsf.org.za
[1] See Freedom Under Law v National Director of Public Prosecutions [2013] ZAGPPHC 271 paras. [117]-[140].
[2] See section 232 of the Constitution.
[3] Section 1(a) of the Constitution.
[4] Preamble to the Constitution.
[5] Mandela, ‘South Africa’s Future Policy: New Pillars for a New World’ (1993) 72 Foreign Affairs 86-97, 87.
[6] Ibid at 97.
[7] The South African Police Service v Southern African Human Rights Litigation Centre [2014] ZACC 30 para. [78].
[8] Ibid para. [42].
[9] Cf. ibid para. [30] fn 25.
[10] Ibid para. [40].
[11] See Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa [1996] ZACC 16, where the need for reconciliation conflicted with the importance of prosecuting violators of human rights.
[12]https://www.npa.gov.za/sites/default/files/Library/Prosecution%20Policy%20%28Final%20as%20Revised%20in%20June%202013.%2027%20Nov%202014%29.pdf
[13] Supra note 5 at 87.
[14] Ibid at 92.
[15] Supra note 7 para. [32].
[16] Ibid para. [37].
