Opinion & Analysis

The concern with civil liberties, and particularly the concern that the law should be enforced without fear or favour, are vital elements in a democracy. Respect for human rights depends on the extent to which the state is able to enforce the law expeditiously. The inability to impose the law often results in cynicism and, more dangerously, vigilantism and self-help.

In SA there are several bodies involved in a policing or law-enforcement role. In addition to the South African Police Service (SAPS), the Independent Complaints Directorate, the Directorate of Special Operations and the Special Investigations Unit, which fall under the National Prosecuting Authority, there are five municipal police services, traffic police and municipal security guards, and an extensive private security industry.

Particularly in rural areas, but also in urban areas, permanent force as well as commando units of the South African National Defence Force are also involved in policing activities. A plan is in place to dismantle the system and to incorporate commandos as police reservists.

However, while there is a range of bodies involved in policing functions, the only bodies that have a formal role in crime investigation are the SAPS and bodies falling under the National Prosecuting Authority — including the Directorate of Special Operations, the Special Investigations Unit and the Independent Complaints Directorate.

Of these bodies, both the SAPS and the Directorate of Special Operations have the capacity to initiate their own investigations, while the Special Investigations Unit initiates investigations only when instructed to do so by means of a proclamation by the president in the Government Gazette.

As a result, the SAPS and the Directorate of Special Operations — or the Scorpions unit, as it is most commonly known — have greater flexibility and are able to play a more dynamic role in uncovering organised crime. The Independent Complaints Directorate can initiate its own investigations but does not have the mandate or capacity to investigate organised crime.

As an investigative body, the Scorpions unit has contributed substantially to the effectiveness of SA’s crime-fighting ability and to the credibility of the criminal justice system — and thus to public confidence and trust in government.

This is partly related to how the unit is composed, its current location, the high level of skills and resources it has, and the vigour with which it has carried out its work. Relocating the Scorpions in the SAPS would amount to their destruction.

What defines the Scorpions unit, and contributes dramatically to its effectiveness, is its ability to combine the work of investigators, prosecutors and analysts in investigating groups. This capability would be lost if the Scorpions were to be relocated to the SAPS.

Many of the staff of the Scorpions might resign from the organisation, with the consequent loss to the country’s crime-fighting capacity of skills in which the state has invested.

I understand that a fairly large number of staff have already resigned because of the uncertainty about the unit’s future and because of the politically motivated attacks on it. It is likely that these people will be lost by the state to the private sector, where their skills are in high demand.

The salaries paid to Scorpions investigators are higher than those paid to SAPS investigators. Most of the SAPS specialised structures (that is, the computer crime unit, the Special Task Force and so on) have lost members to the private sector due to relatively low salaries.

A significant part of the staff component of the Scorpions is made up of prosecutors and it would not be possible to accommodate them within the SAPS.

The Scorpions unit has better and quicker access to resources that the SAPS does not provide to its investigators. One example is laptop computers, which the SAPS does not procure itself but has to have donated or purchased with donor funds. The bureaucratic procedures for procurement in the SAPS typically mean that units have to wait a long time (sometimes more than a year) to receive important equipment, thus hampering their work.

The chain-of-command hierarchy in the SAPS means that unless a specialised unit is specifically secured and authorised to report only to the SAPS national commissioner, too many police officials may have access to information or may interfere with investigations. The previous anticorruption units experienced this as they had to inform SAPS provincial heads of detectives about investigations of police officials in the province.

This compromised investigations because the officers being investigated were, on occasion, alerted. This subverts confidentiality in investigation and law enforcement.

Relocating the Scorpions unit to the SAPS would significantly weaken its operations, undermine its human and material capacity, and might result in its investigations being compromised.

The result would be that SA would lose an important capacity to investigate complex cases of crime and corruption. In particular, SA would lose analytical skills in the field of financial investigation, which are crucial to the investigation of money-laundering activities and which support supplementary law-enforcement mechanisms such as the Asset Forfeiture Unit.

Moving the Scorpions into the SAPS would also result in a further concentration of crime investigation capacity in a single organisation. This could jeopardise the investigation of organised crime and corruption.

It is internationally recognised that corruption is an occupational hazard of all policing agencies. What differs between policing agencies is the extent of the problem.

Units dealing with organised crime are highly vulnerable to corruption, as wealthy organised-crime syndicates will go out of their way to identify and influence these units, and the ranking police officials who have influence over them, to protect their activities from the reach of the criminal justice system.

An established characteristic of police culture, both internationally and in SA, is that police officials tend to protect their colleagues — this is usually described as “canteen culture”. This includes failing to report colleagues for misconduct or suspicious activity, refusing to co-operate with investigations of colleagues, and leaking information to colleagues under investigation. These factors contribute to corruption becoming an occupational hazard as they make it very difficult to tackle corruption effectively within policing agencies.

The existence of well-resourced independent investigative units that fall outside the normal police chain of command ameliorates the consequences of these risks. This has been part of the motivation for the creation of “oversight bodies” such as the Independent Complaints Directorate.

While the directorate is responsible for investigating cases of possible police criminality, its investigative capacity is suited only to investigating individual incidents — such as incidents of deaths in custody, and deaths as a result of police action. The directorate does not have the capacity to investigate complex cases of organised crime, which often include a dimension of police corruption.

The current situation, where SA has both the SAPS and the Scorpions, therefore creates a healthy dynamic in the sphere of crime investigation in SA.

This is not only about the dynamic of competition between the two bodies, but also about the potential that, even if instances of organised crime are rendered immune from investigation for corruption in either the SAPS or the Scorpions, they could still be investigated by the other organisation.

By contrast, locating the Scorpions within the SAPS will enhance the vulnerability of the SAPS, particularly its organised crime units, to corruption, due to the absence of this potential. It will also result in a very high level of concentration of investigative capacity, and therefore of power, in the SAPS, with potentially harmful implications in terms of the impartial application of the law. Diversity of authority is a safeguard for the community.

It may reasonably be anticipated that moving the Scorpions to the SAPS would contribute to a loss of public confidence and trust in the criminal justice system and in government. There is a traditional distrust of government in relation to its willingness to hold powerful individuals accountable for wrongdoing. This may be misplaced, but it is a pervasive perception not limited to SA.

The work of the Scorpions has gone a considerable way to promoting some level of confidence in SA — that there is a greater level of equality before the law.

High-profile prosecutions that are successful instil fear among wrongdoers and will assist in obtaining the co-operation of the public in other cases.

However, if the Scorpions unit is relocated in the SAPS it is likely it will be perceived by many people (albeit incorrectly) as an attempt to undermine the capacity of the Scorpions, given the unit’s ability to bring politicians, powerful bureaucrats and corporate individuals before the courts.

Complex issues associated with criminality require a high degree of professionalism. The Scorpions unit has shown that it is able to unravel matters.

The sheer volume of evidence in the recent trial against Durban businessman Schabir Shaik reflected a forensic capacity difficult to identify elsewhere in SA.

If the Scorpions unit was moved, South Africans would lose confidence that all are equal before the law, while corrupt persons might perceive this as an encouragement to corruption.

It is also important to note that there has been a substantial contribution by international law enforcement agencies such as the Federal Bureau of Investigation and Scotland Yard in training and skills development within the Scorpions, through various training programmes and other forms of co-operation. The disbanding of the Scorpions would undermine goodwill that has been developed through co-operation and would be a setback for SA’s reputation as a participant in the fight against crime at an international level.

It is evident that there are problems that need to be sorted out — partly related to the potential for duplication of investigations, as the SAPS and the Scorpions both have a mandate in relation to the investigation of organised crime.

However, this is not an unusual situation as law enforcement bodies in many countries have to deal with the problem of overlapping jurisdictions and mandates. The benefits of retaining the Scorpions unit in its present location far outweigh the disadvantages.

Rather than closing down a highly successful unit because of occasional duplication, the focus should be on how to improve mechanisms for co-ordinating the work of the SAPS and the Scorpions. I suggest that:

• The Scorpions should remain within the National Prosecuting Authority.
• Clarity be provided in an appropriate manner about the mandates of the SAPS and the Scorpions.
• The recommendations of the commission of inquiry into the mandate and location of the Directorate of Special Operations should speak to the need for improved systems of communication and co-ordination between the SAPS and the Scorpions. In this respect it is not clear that the ministerial co-ordinating committee — provided for in section 31 of the National Prosecuting Authority Act — serves the purposes of ensuring co-operation between the Scorpions and other agencies. It may make sense for the legislation to be amended to provide for a more streamlined investigation coordinating mechanism.

There ought to be greater clarity about the role of the minister. Authority to provide guidelines and accountability to the president and Parliament are appropriate. Involvement and interference in concrete cases is untenable and, therefore, unacceptable.

The commission should also make it clear that the Scorpions should respect the presumption of innocence and not embark on prearrest publicity, which often reduces such midnight investigations to a circus. However, I believe this is due to overenthusiasm about officers’ work.

It is vital for the preservation of confidence in the administration of justice that the commission’s report provides a ringing support for the maintenance and strengthening of the Scorpions unit, both in relation to its mandate and its separate existence from, and role in, the SAPS.

Asmal was a government minister from 1994-2004 and was party to the establishment of the Scorpions. This is an edited extract of his affidavit to the commission of inquiry into the mandate and location of the Directorate of Special Operations.

With acknowledgements to Kader Asmal and Business Day.