New media, specifically social media platforms like Twitter, have become increasingly popular and ubiquitous, serving various purposes in law, government agencies, and healthcare. Social media provides prosecutors and prosecutorial offices with official accounts to communicate with the public. As Vance highlights, social media allows prosecutors to communicate with the public more efficiently and transparently, potentially improving public perception of prosecutors and fostering an informed citizenry. Consequently, enhancing public perception of prosecutors' offices may strengthen community ties, improve support for law enforcement, and deter criminal activities.
In South Africa, the National Prosecuting Authority (NPA) plays a crucial role in the Criminal Justice System (CJS), as it forms Programme 4 of the Department of Justice and Constitutional Development (DoJ&CD), supporting all efforts to achieve the CJS's outputs and outcomes.
The NPA is responsible for initiating and conducting criminal proceedings on behalf of the State, and has the authority to carry out or discontinue necessary functions related to instituting such proceedings, making it the prosecution authority of the State.
The NPA derives its mandate from Section 179 of the Constitution, which requires it to provide coordinated prosecution services that ensure justice is delivered to victims of crimes, remove the profit from crime, and protect witnesses. Accountability is a critical aspect of this mandate.
The NPA is primarily accountable to the public. Redpath says that the public expects prosecutors to take responsibility for their decisions, especially in criminal justice systems that do not have compulsory or mandatory prosecution. Public accountability involves informing and explaining to the public how prosecutorial responsibilities are being met and taking corrective actions where necessary and giving an account of such actions.
The NPA Act also makes the NPA accountable to Parliament, which replaced individual provincial Attorney Generals in South Africa to be more centralised in its functioning. Additionally, individual prosecutors of the NPA are accountable to the courts. Internally, the NPA's prosecutors are accountable to their Directors of Public Prosecution (DPPs), who are answerable to the National Director of Public Prosecutions (NDPP).
In a recent study that examined the NPA's accountability via Twitter, tweets from their official account were analysed using an accountability framework that draws on Maranti Kartika Dewi’s Dimensions of Accountability and Jean Redpath’s Accountability of the NPA. The framework places focus on Upward and Downward Accountees: those to whom the NPA is required to provide accountability. In doing so, it explores the Motivations (External and Internal) for providing accountability, and the Mechanisms (Formal and Informal) used to do so (see below).
The study found that the NPA’s use of Twitter is primarily to provide Externally Motivated Downward Accountability using Informal Mechanisms (highlighted in red in the framework above). The Constitution is the main motivator for the NPA to be accountable to the public, and Twitter, being a form of new media, acts as the informal mechanism through which to provide downward accountability to the public.
Sharing content in various formats (like text, image, video, etc.), the NPA uses Twitter primarily for sharing, with the broader public, the cases it is involved in. As the agency responsible for state prosecutions in South Africa, this makes sense, and aligns with Redpath’s first notion of public accountability: rendering an account of the manner in which prosecutorial responsibilities are being met.
Part of such accountability, however, is making clear and transparent the policy directives guiding how prosecutors exercise their discretion. While a prosecution policy document exists in the public domain, the more detailed directives are treated confidentially. This opaqueness makes achieving the second notion of public accountability difficult: the NPA taking corrective actions when required, and giving an account of these corrective actions. As Redpath puts it:
“The NPA has tended toward a limited degree of public accountability”
Referring to the framework, above, although tweets can never replace courts as the formal mechanisms for providing accountability to investigative agencies, victims, and witnesses, the NPA does on occasion mention the court and the investigative agency involved, when tweeting about cases. In doing so, the NPA provides some insight into which courts act as formal mechanisms for downward accountability to investigative agencies (only insofar as the NPA chooses to tweet, of course).
Since individual prosecutors of the NPA are accountable to the courts themselves (the judiciary), the courts also act as an upward accountee of the NPA. Accountability is communicated by prosecutors to the courts using formal mechanisms of law and prosecutorial policy. Again, while tweets can never replace these formal mechanisms of law, they do provide a picture of the courts the NPA are accountable to (again, only insofar as the NPA chooses to tweet).
The NPA is also upwardly accountable to Parliament. The National Director of Public Prosecutions (NDPP) is required to prepare a report about the NPA’s activities, and submit this report to the Minister, who tables it at Parliament. These reports (usually compiled annually) are examples of formal mechanisms for providing accountability to Parliament. Analysis revealed that the NPA only shared 2 tweets about the reports — one for the 2017/2018 financial year, and one for the 2019/2020 financial year. That said, neither linked to the reports themselves, even though they do exist on the NPA’s official website. This is an under-utilised opportunity for broader circulation of existing accountability information.
While the Constitution is the main motivator for the NPA to be accountable to the public, there are other acts, policies, and directives externally motivating the NPA to be accountable to the other accountees. These include the Prevention of Organised Crime Act (POCA), the Criminal Procedure Act (CPA), and the National Prosecuting Authority Act (NPAA). The NPA refers to these motivators to varying degrees in its tweets (see below).
The NPA consists of various subdivisions in the form of units, components, and directorates. A few examples include the Asset Forfeiture Unit (AFU), the Organised Crime Component (OCC), and the Investigating Directorate (ID). The individual prosecutors making up these various units are, as part of the NPA’s internal accountability chain, accountable to their respective Directors of Public Prosecutions (DPPs) who are, in turn, accountable to the NDPP. One particular instance where such internal accountability is triggered (or should be), is when the courts hold individual prosecutors to account. If individual prosecutors are unable to show to their seniors that their decisions were principled, and in line with the relevant policy directives, they face consequences.
The exact mechanisms for demonstrating their independent and legal decision making to seniors is unclear, other than Redpath referring to so-called ‘internal management structures’. That said, the NPA’s tweets do, on occasion, refer to their internal units, providing some indication of the spread of work across the NPA. The most frequently mentioned subdivision of the NPA is the Investigating Directorate (ID) (see below).
Although Twitter can never replace the formal mechanisms for the NPA providing accountability, the study highlights some areas for improvement. In the age of new media, the NPA’s case related tweets could include more imagery and video. This could include live stream functionalities built into most social media platforms. NPA tweets could also be improved by including more direct links to important information, and avoid redirecting users to other sources, or the general landing page of the NPA website. Given the NPAs own strategic goals, Twitter is being under-utilised as a data and information circulation tool.
The NPA could further improve its transparency to the public by making more explicit the Investigative Agencies and courts involved in cases. For example, all case-related updates could, as a standard, include the court and investigative agency involved, thereby providing a clearer picture of its activities, and those involved. Another important area for improvement is to share the mechanisms used for internal accountability — no tweets analysed referred to any internal processes the NPA has followed for holding itself accountable.
Finally, it should be noted that Twitter’s limitation (as a mechanism for providing accountability) is also its strength. While messaging chosen to be shared on Twitter may not accurately reflect the NPA’s actual functioning (formal mechanisms of accountability are more useful for that form of accountability), it is a reflection of the NPAs self-elected organisational and policy priorities for public accountability, which is illuminating in its own sense.
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NOTE: This blog post shares some of the high-level insights from a study conducted by OpenUp. Refer to this report for the in depth analysis.
