The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind – II
In the first brief I explained that the purpose of this series of four briefs is to determine whether the NPA has a duty to prosecute foreign nationals who prima facie appear to have committed crimes against humanity, war crimes and genocide. I indicated that I think such a duty does exist and that this duty is sourced in the Constitution itself. My explanation of why this duty exists began with an outline of the Constitutional Court’s judgment in the SALC decision, a case dealing with the duty of the SAPS to investigate foreign nationals accused of crimes against humanity, war crimes and genocide. I ended the first brief by claiming that the finding of the court that the NPA has a discretion but not a duty to institute criminal proceedings presents certain problems—especially given the decision by the ANC to withdraw South Africa as a member of the ICC. In this second brief, I will explain the significance of the Constitutional Court’s conclusion and I will begin to interrogate the basis of this conclusion.
The importance of the SALC decision
Why is the conclusion of the Constitutional Court in the SALC decision so important?
As we now know, the SAPS has a duty to investigate allegations of crimes against humanity. This is good, for it provides an avenue for holding perpetrators of such crimes responsible. Whilst the court in the SALC decision leaned heavily on the Rome Statute and the ICC Act when coming to the conclusion that the SAPS has a duty to investigate allegations of crimes against humanity, there is little doubt that the court would have come to the same conclusion even if South Africa had not ratified the Rome Statute or domesticated it into South African law through the ICC Act. Like the duty to prosecute, which I will argue in the fourth and final brief is sourced from the Constitution itself, the duty to investigate is ultimately sourced in the Constitution. Thus, even if South Africa withdraws from the ICC and repeals the ICC Act, the SAPS will have a duty to investigate the allegations against someone like President al-Bashir.
Following an investigation, however, and assuming that the investigation reveals a prima facie case against the alleged criminal, does the NPA have a duty to take steps to prosecute him? It is this question that makes the conclusion by the court in the SALC decision—that is, the conclusion that because section 179(2) affords the NPA a power to prosecute, it affords the NPA a discretion but not a duty to prosecute—so important.
According to a long history of cases, there are two types of discretion: subjective and objective. [1] In this brief I assume that the discretion contemplated by the Court is objective, which is to say that the NPA cannot make decisions based on personal preferences. [2] Its decision whether to prosecute must be based on so-called objective value judgments pertaining to the facts of a give case.
Even if the discretion is objective, such that the NPA does not have a complete discretion in deciding whether to prosecute, there is an important difference between the idea that the NPA has discretion to prosecute and the idea that it has a duty to do so. If it has discretion, the power to prosecute must be exercised lawfully and rationally. When exercised lawfully and rationally, it will be justified as a matter of law and courts may not review and set aside the exercise of this power. If the NPA has a duty to prosecute, this does not mean that the standard of review will be different. Rather, it means that where there is a prima facie case that a foreign national has committed crimes against humanity, the onus will be on the NPA to justify its decision not to institute criminal proceedings. The onus will lie with the NPA to justify its exercise of power. This is because prima facie evidence that a foreign national has committed crimes against humanity will, all things being equal, activate the NPA’s duty to institute criminal proceedings.
Why does the placement of onus matter? In short, it matters because it might affect the outcome of a dispute as to whether the NPA properly exercised is power under section 179(2) of the Constitution. This is because if the NPA has the onus of proving that it acted lawfully and rationally, in a case where it did not institute criminal proceedings against a foreign national who prima facie appears to have committed crimes against humanity, it must adduce evidence demonstrating that it in fact acted lawfully and rationally. Until it adduces this evidence, the evidential assumption will be that it did not act lawfully and rationally. Sometimes this evidence will not be available or it will be insufficient to rebut this assumption.
Following an investigation, however, and assuming that the investigation reveals a prima facie case against the alleged criminal, does the NPA have a duty to take steps to prosecute him? It is this question that makes the conclusion by the court in the SALC decision—that is, the conclusion that because section 179(2) affords the NPA a power to prosecute, it affords the NPA a discretion but not a duty to prosecute—so important.
According to a long history of cases, there are two types of discretion: subjective and objective. [1] In this brief I assume that the discretion contemplated by the Court is objective, which is to say that the NPA cannot make decisions based on personal preferences. [2] Its decision whether to prosecute must be based on so-called objective value judgments pertaining to the facts of a give case.
Even if the discretion is objective, such that the NPA does not have a complete discretion in deciding whether to prosecute, there is an important difference between the idea that the NPA has discretion to prosecute and the idea that it has a duty to do so. If it has discretion, the power to prosecute must be exercised lawfully and rationally. When exercised lawfully and rationally, it will be justified as a matter of law and courts may not review and set aside the exercise of this power. If the NPA has a duty to prosecute, this does not mean that the standard of review will be different. Rather, it means that where there is a prima facie case that a foreign national has committed crimes against humanity, the onus will be on the NPA to justify its decision not to institute criminal proceedings. The onus will lie with the NPA to justify its exercise of power. This is because prima facie evidence that a foreign national has committed crimes against humanity will, all things being equal, activate the NPA’s duty to institute criminal proceedings.
Why does the placement of onus matter? In short, it matters because it might affect the outcome of a dispute as to whether the NPA properly exercised is power under section 179(2) of the Constitution. This is because if the NPA has the onus of proving that it acted lawfully and rationally, in a case where it did not institute criminal proceedings against a foreign national who prima facie appears to have committed crimes against humanity, it must adduce evidence demonstrating that it in fact acted lawfully and rationally. Until it adduces this evidence, the evidential assumption will be that it did not act lawfully and rationally. Sometimes this evidence will not be available or it will be insufficient to rebut this assumption.
The coexistence of duty and discretion
In this brief, I have explained the significance of the finding in the SALC decision that the NPA does not have a duty to prosecute, but instead has ‘just’ a discretionary power. I will explain why this is mistaken in the third and fourth briefs of this series. In the remainder of this brief, however, I want to explain why it is not conceptually incoherent to say that a person who has a duty to act can also have a discretion.
Duties and discretions can co-exist in at least three ways:
1. Means: A person may have a duty to perform a particular task but she may have discretion about how to go about doing so. So, for example, parents may have a duty to ensure that their child receives basic education, but this duty may be met by sending the child to private school, public school or by home-schooling.
2. Equivalence: Someone may have a duty to act in a particular way, but she may also have a duty to act in a way that conflicts with the first duty. For example, I may have a duty to help my friend move houses, but I might also have a duty to give another friend a lift to the airport. These duties might conflict if my friends are moving and flying on the same day. Some people think that in cases of this type, where the duties are equivalently weighted, I will have complete freedom to act as I happen to think fit, that is, a discretion about which of my two friends to help. [3]
3. Reviewability: It might be that a person has a duty to act in a particular way when certain conditions are satisfied, but that no third party has the power to second-guess that person’s determination of whether these conditions have been satisfied (or, at least, a limited power to second-guess their determination). Or, to put it another way, it may be that no third party can compel the person to act as required simply because this third party thinks that the conditions contemplated by the power have been satisfied.
Of the three ways identified in which duties and discretions might coexist, the second and especially the third are relevant to this series of briefs. Regarding the second, the NPA might have a duty to prosecute, but this duty might conflict with other duties—say, those it owes towards citizens not to act in a way that seriously threatens peace. In such cases, where the duties are equivalently weighted, the NPA has both a duty to prosecute and a duty not to prosecute. Regarding reviewability discretion, the NPA may have a duty to prosecute if certain factual conditions are met. But, ‘the polycentric character that generally accompanies its decision-making, including considerations of public interest and policy’, [4] may mean that third parties, such as a court, have limited power to second-guess the NPA’s determination as to whether these conditions have been met.
I return to the third of these three ways in which duties and discretions might coexist in the final brief of this series. For now, I want to sum up the two main points that I have made in this brief. First, the outcome of any challenge to the NPA’s exercise of power under section 179(2) of the Constitution will sometimes turn on whether the power of the NPA to institute criminal proceedings is ‘just’ discretionary or whether the NPA 'also' has a duty to exercise this power. Second, duties and discretions are not mutually exclusive. A person vested with a power may have a duty to exercise that power and may also have a discretion in her exercise of that power.
If the second of these two points is correct, however, how do we make sense of the SALC decision that because the NPA has a discretion whether to institute criminal proceedings, it therefore does not have a duty to prosecute? The explanation for this logical mistake, I think, requires an exploration of why Majiedt AJ thinks that the NPA has discretion at all. Such exploration and explanation is the subject of my third brief.
Duties and discretions can co-exist in at least three ways:
1. Means: A person may have a duty to perform a particular task but she may have discretion about how to go about doing so. So, for example, parents may have a duty to ensure that their child receives basic education, but this duty may be met by sending the child to private school, public school or by home-schooling.
2. Equivalence: Someone may have a duty to act in a particular way, but she may also have a duty to act in a way that conflicts with the first duty. For example, I may have a duty to help my friend move houses, but I might also have a duty to give another friend a lift to the airport. These duties might conflict if my friends are moving and flying on the same day. Some people think that in cases of this type, where the duties are equivalently weighted, I will have complete freedom to act as I happen to think fit, that is, a discretion about which of my two friends to help. [3]
3. Reviewability: It might be that a person has a duty to act in a particular way when certain conditions are satisfied, but that no third party has the power to second-guess that person’s determination of whether these conditions have been satisfied (or, at least, a limited power to second-guess their determination). Or, to put it another way, it may be that no third party can compel the person to act as required simply because this third party thinks that the conditions contemplated by the power have been satisfied.
Of the three ways identified in which duties and discretions might coexist, the second and especially the third are relevant to this series of briefs. Regarding the second, the NPA might have a duty to prosecute, but this duty might conflict with other duties—say, those it owes towards citizens not to act in a way that seriously threatens peace. In such cases, where the duties are equivalently weighted, the NPA has both a duty to prosecute and a duty not to prosecute. Regarding reviewability discretion, the NPA may have a duty to prosecute if certain factual conditions are met. But, ‘the polycentric character that generally accompanies its decision-making, including considerations of public interest and policy’, [4] may mean that third parties, such as a court, have limited power to second-guess the NPA’s determination as to whether these conditions have been met.
I return to the third of these three ways in which duties and discretions might coexist in the final brief of this series. For now, I want to sum up the two main points that I have made in this brief. First, the outcome of any challenge to the NPA’s exercise of power under section 179(2) of the Constitution will sometimes turn on whether the power of the NPA to institute criminal proceedings is ‘just’ discretionary or whether the NPA 'also' has a duty to exercise this power. Second, duties and discretions are not mutually exclusive. A person vested with a power may have a duty to exercise that power and may also have a discretion in her exercise of that power.
If the second of these two points is correct, however, how do we make sense of the SALC decision that because the NPA has a discretion whether to institute criminal proceedings, it therefore does not have a duty to prosecute? The explanation for this logical mistake, I think, requires an exploration of why Majiedt AJ thinks that the NPA has discretion at all. Such exploration and explanation is the subject of my third brief.
Matthew Kruger
Legal Researcher
matthew@hsf.org.za
[1] See, for example, the discussion in Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd 1992 (2) SA 791 (A), and for a more recent discussion of this point, see Democratic Alliance v President of South Africa and Others [2012] ZACC 24 paras. [14]-[26].
[2] For support for my assumption, see National Director of Public Prosecutions and Others v Freedom Under Law [2014] ZASCA 58.
[3] Part of the difficulty in expressing this point is that ‘duty’ can mean either an all-things-considered duty, or a prima facie duty. In the context of this brief, I use ‘duty’ in the second sense. See John Searle, ‘Prima Facie Obligations’ in Joseph Raz (ed), Practical Reasoning (OUP, Oxford 1978) 81-90 and Gilbert Harman, ‘Reasons’ (1975) 21 Critica 3-17.
[4] Supra note 2 para. [25].