Much has been said and written recently about the decision taken at the
ANC's 52nd national conference in December to implement the constitutional
imperative that only one national police service should exist and to dissolve
the directorate of special operations, the Scorpions, integrating it into the
South African Police Service (SAPS).
Almost all those opposed to this decision say that it was taken to "protect
powerful ANC politicians from current and future investigations" by the
Scorpions. They also argue that to keep the ANC from the "exercise of unbridled
power", the Scorpions must be left alone.
Such people appear to be missing the point. If the ANC is seeking "unbridled
power", and assuming that in 2009 some of these "powerful politicians" will
indeed come to power, would it not make more sense for them simply to leave the
Scorpions alone to use later in their own interests?
More importantly, though, people do not seem to appreciate that the Scorpions
were formed by the executive arm of government as part of a well-meaning plan to
combat organised crime.
But, with the value of hindsight, there is no disgrace in acknowledging that the
formation of the Scorpions was based on legislation that did not pay proper
attention to the requirements of the constitution. And, with the passing of
time, as the unit conducted its activities in the way that it did, its
constitutional misalignment became increasingly clear. So too did the conflict
between the Scorpions and the SAPS because these two national structures pursued
similar goals.
The ANC became alive to this situation many years ago - traces of disquiet,
albeit in a generic form, about the misalignment can already be seen in the
resolutions of the Stellenbosch national conference held in 2002. This disquiet
grew and worked its way through the ANC branches until it found formal
expression in the call for the disbandment and relocation of the Scorpions at
the July 2007 policy conference, six months before the Polokwane conference.
In an important constitutional court judgment, it was noted by Judge Johann
Kriegler that the constitutional chapter that establishes and governs the
security services clearly prescribes that there be "a healthy blend of
democratic aspiration and practical safeguards" and that it also contains
appropriate measures to deal with any misdirection of any of the services.
Given the history and the role of the security services in apartheid South
Africa, this was how it had to be. The particular chapter was written to provide
the constitutional basis for ushering in a new era for the security services.
The drafters of the constitution sought to construct a democratic framework for
the establishment, structuring, legislative sanction, accountability, political
control and parliamentary control of the services.
The drafters intended to make all the security services, armed organisations or
services, intelligence services, departmental intelligence divisions or any
hybrid security service, subject to national legislation and the rule of law, to
the authority and oversight of parliament and to the command, control and
oversight of the executive.
They would also be subject to a strict and enforceable code of conduct ensuring
that their activities were non-partisan in respect of political parties, to
co-ordination, to judicial authority and monitoring in respect of interception
and monitoring intelligence activities, and to civilian monitoring of the
activities of these services by an inspector-general appointed by parliament.
One must therefore ask the following questions. What exactly is the directorate
of special operations? What principles govern it? What checks and balances
exist? Is it part of South Africa's "security services" as defined by the
constitution? Can it be characterised as a "police service" since it performs
policing functions?
Is it an "intelligence service", given that it performs intelligence functions?
Is it an "armed organisation or service"? (Its members are armed and function as
a service.) Is it the investigative and crime intelligence division of the
National Prosecuting Authority (NPA)?
Or is it a hybrid of all of the above? And, if so, is it subject to the "healthy
blend of democratic aspirations and practical safeguards" to which the
constitutional court referred? If not, why not? How did the Scorpions come to be
"above" the constitution?
The founding legislation of the Scorpions (section 7 of the National Prosecuting
Authority Act) created a "hybrid security service" and failed the stipulations
of the constitution. The drafters of the NPA Act clearly decided to house
prosecutorial, investigative and intelligence activities in one hybrid entity,
free from constitutional checks and balances.
Let us take a few examples. Section 209 (1) of the constitution holds that any
intelligence service, other than any intelligence division of the defence force
or police service, may be established only by the president, and only in terms
of national legislation. Further, in terms of this section, it is the president
who must appoint a person as head of each intelligence service. Working on the
assumption that the Scorpions are an intelligence service with law enforcement
powers, then the appointment of the head of the Scorpions by the national
director of prosecutions (which is what has happened, as per the NPA Act),
failed the constitutional requirement.
And, as an intelligence service, the Scorpions should be subjected to the
constitutional provisions contained in Section 210, which governs the powers,
functions and monitoring of the intelligence services, which the NPA Act does
not provide for. Here the NPA Act fails the constitutional requirement again.
And if we work on the assumption that the Scorpions are a law enforcement agency
with an intelligence division, or an intelligence division of a law enforcement
agency, then again the NPA Act falls short of the requirements of Section 210 of
the constitution.
The "hybrid" nature of the Scorpions makes these permutations endless, and with
each permutation we are left with contradictions between the constitution and
the NPA Act.
As a result of these shortcomings, the Scorpions have managed, during the decade
of their existence, to resist every attempt to subject their activities to
constitutional requirements.
Contrary to popular belief, the NPA Act does not define the mandate of the
Scorpions as organised crime, as the term is commonly understood, but as
"offences or any criminal or unlawful activities committed in an organised
fashion", where "organised fashion" "includes the planned, ongoing, continuous
or repeated participation, involvement or engagement in at least two incidents
of criminal or unlawful conduct that has the same or similar intents, results,
accomplices, victims or methods of commission, or otherwise are related by
distinguishing characteristics".
This extremely vague mandate can be used to bring the full weight of the NPA to
bear on almost any crime. In the absence of any checks and balances, this wide
mandate, in concert with the even wider powers given by the NPA Act to the head
of the Scorpions, can be easily abused and, unfortunately, has been.
Over the years we have witnessed the leakage of information from the Scorpions
to influence the public mindset, smear campaigns, an off-the-record briefing of
editors, reports of misuse of funding, abuse of authority, the unauthorised
disclosure of information, acts of corruption by members of the NPA, selective
investigation and prosecutions, and alleged attempts by the Scorpions's senior
management to influence political parties.
It is important, given the Special Browse reports, to consider whether sensitive
information in the possession of the Scorpions was used by elements antagonistic
to the government to sow division and to embarrass it. This speaks to the lack
of effective control and accountability of the Scorpions - and to the structural
design that fosters this abuse.
Such abuses of power should not be left unprosecuted. But who prosecutes the
national director of prosecutions in the event of alleged criminal activity? Who
is to guard the guards themselves?
Much is said in praise of the successes of the Scorpions and they may have a
high rate of successful prosecutions. However, has an independent assessment
been conducted to measure their success against their overall stated objectives?
What has been the true impact of the Scorpions's work on organised crime? Unlike
the SAPS, the NPA's stated policy is to prosecute only those cases that it
believes it has a reasonable chance of winning in a court of law. In this
context, is the success rate of the Scorpions not exaggerated?
We hear much of the high-profile cases involving ANC political figures, but are
told nothing of the cases the Scorpions choose not to investigate. We see no
publicised take-downs of drug barons, bosses of violent criminal syndicates,
CEOs of companies involved in price fixing or senior bankers involved in
organised offshore tax-evasion banking scams.
It appears that the Scorpions have been modelled on a "dotcom" version of the
FBI.
It also appears that the NPA, by having the Scorpions under its command, has
attempted to become South Africa's FBI. Both have taken on these roles by
default, by slipping through the cracks of hasty, ill-considered legislation
sponsored by an executive desperate for quick wins, passed by a legislature
eager to please and spin-doctored to a populace in need of hope and safety.
The American model will simply not work here. In the US, the FBI is the "only"
national law enforcement agency. The rest of the policing services are
decentralised. The existence of both the Scorpions and the SAPS as separate,
single, competing national structures with concurrent policing, investigative
and intelligence functions is a recipe designed for
failure *1.
The Scorpions should not have been allowed to exist in the first place, or for
so long.
* Moe Shaik was a former deputy intelligence co-ordinator of the National
Intelligence Co-ordinating Committee. He writes in his personal capacity
With acknowledgements to Moe Shaik and Sunday Independent.
*1Actually, the DSO was doing very
indeed, albeit with statistics pumped up by case selection and plea bargaining.
But what is wrong with plea bargaining if it is the only practical way of
finalising an intractable case?
Or what is wrong with selecting cases for prosecution that are winnable *2
What is the use of prosecuting cases that are truly not winnable?
There's an old adage that where there's a will there's a way.
There was a way to make the DSO work properly even in all the circumstances of
inter-service tension, parallel intelligence functions, personal cabbage
patches.
The DSO also clearly had its own unique skills and style which worked.
But there was no will and so there was no way.
South Africa will forever be the poorer for it.
*2And here I do not include the original corruption case
against Zuma.
That was clearly, both with hindsight and with foresight, winnable and the NDPP
lied about this because he was off on a junket if his and his boss's.
The SAPS should have wacked him for this using the Balance of Power.