Deliberations on National Prosecuting Authority Bill

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Justice and Correctional Services

08 March 1998
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Meeting report

PORTFOLIO COMMITTEE ON JUSTICE
9 March 1998
DELIBERATIONS ON NATIONAL PROSECUTING AUTHORITY BILL

Documents handed out:
NPA27, a summary of all submissions received on the bill up till 4 March 1998.

The Committee deliberated on the submissions made. The Department drafter, Mr. de Lange, read from NPA27 clause by clause and after each submission entry the Committee discussed the comments. The Chair summed up the Committee decision in relation to all the points. What follows is a clause by clause record of the decisions made during the meeting. The submission number (NPA…) which precedes each comment relates to the written submissions, but the substantive point from that submission is not included. (For the substantive point you will have to consult NPA27.) The comment after is that of the Committee as summarised by the Chair. Individual debate and viewpoint has not been included.

Clause 2

NPA2: The Constitution will not allow this point. The Committee has no authority to deviate from s.179.

NPA12: The Committee members need to read the Namibian judgement and to debate the topic. This is a very important point as it goes to the underlying principles of the prosecuting authority - the wording used will determine whether the Minister can override decisions to prosecute.

The Constitution clearly spells out the Minister’s role - that of administrative oversight. The only other power given to him/her is in relation to prosecution policy and he is not given any power to interfere in decisions to prosecute.

Therefore the Committee should consider whether the bill should deal with all prosecutions, including private and contracted ones.

NPA14: The Committee was happy to make the necessary amendment to clause 2(3). As far as clause 2(4) is concerned, the bill should follow the words used in the Constitution.

NPA24: The Department stated that it could not find the reference of this submission, nor where it fits in. They will follow up later.

Clause 3

NPA3: The Chair wants the Committee to consider whether the Office for Serious Economic Offences should be included in the bill or whether there should be two parallel processes merely "joined at the hip". This was left for further investigation later.

NPA8: This comment is not applicable as it relates to an earlier draft.

NPA14: This suggestion was accepted.

Discussion: The issue of Deputy Directors is very important, as they are the people in the field (with special portfolios, e.g. drugs). Therefore it is important to examine more closely whether to have one or more Deputies in the office of National Director.

Naming of Prosecutors: This should be left open as a generic term. The bill needn’t spell out that there will be different ranks, as it does not purport to change existing situation.

Clause 4

NPA14: 4(b): The Committee thought it would be best to leave the wording in the bill as it presently stands because it is based on the wording used in the Constitution.

4( c): The Committee decided to keep the sub-clause as it stands - these words were added deliberately to ensure absolute clarity.

NPA19: These recommendations will be discussed later when the Committee discusses powers, duties and functions.

Clause 5

NPA2: Especially with the OSEO, prosecutors may be involved at an early stage of the investigation when a prosecution has not yet been instituted. The words "in respect of any prosecution" restrict the generality of the clause.

NPA14: The Committee cannot comment, as there is no finalisation of the issue.

Clause 6

NPA3: The Committee disagrees with the submission. The bill restricts the number of Directors in the National Director’s office to three. There may even be a need for the President to appoint more, for example during a State of Emergency.

As far as Deputy Directors are concerned, the words "one or more" should be deleted.
There is a need to be very clear on this structure.

NPA14: The Committee agrees with the suggestion, but would like to go further.

Clause 7

NPA3: This relates to the broader problem raised earlier, i.e. how to include the OSEO? Why exclude the office here when it is included elsewhere? The Committee will await finalisation of the OSEO matter.

NPA14: The Committee agrees with the technical proposals made.
There are however problems with the triangulation of the consultative procedure, for instance, how would it operate in practice? A political decision is needed.

The meeting adjourned.

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