South African President Kgalema Motlanthe signed two significant bills into law on January 30, 2009: the National Prosecuting Authority (NPA) Amendment Bill and the South African Police Service (SAPS) Amendment Bill. Together, they provide for the dissolution of the NPA’s Directorate of Special Operations (DSO), or ‘Scorpions’, and the establishment of a new anti-corruption unit within the SAPS. At the time of writing, the government has yet to announce its timetable for a transition to the new unit.
As the nation’s political parties unfurl their election manifestos and rally their bases, the DSO remains the focus of passionate, at times vituperative, debate on the boundaries of prosecutorial authority in the fight against public corruption. Opposition parties continue to accuse the ANC of dismantling the DSO to subvert investigations of corruption within the party’s ranks, and have pledged to reinstate the unit if elected. The ANC, for its part, has reiterated its assertion that the DSO vindictively targeted ANC members, overstepped its mandate, and used media leaks to tarnish the party’s highest officials.
In the wake of legislation terminating the unit, many questions remain, not the least of which concern the fate of its ongoing action against suspended National Commissioner of Police Jackie Selebi. Yet while new challenges loom ahead, the political discourse on the fate of the DSO appears trapped in stasis, locked in a debate over what the unit “was” without concomitant focus on the institution set to replace it – the Directorate for Priority Crime Investigation (DPCI).
Throughout this election season, the parties have variously assailed phantom versions of the DSO and DPCI – the former unbridled in its attack on the ANC, the latter neutered by its subservience to SAPS – without crediting the changes incorporated into the bills during the legislative process, or conversely, the concerns they still fail to rectify. This may prove costly. Instead of laying the foundations for an anti-corruption regime capable of securing broad public support, this divisive discourse undermines the potential of any subsequent model (including a reincarnated DSO) to secure the public buy-in it may need to succeed.
In truth, the legislation signed by President Motlanthe includes safeguards absent from its first draft. Yet these are insufficient to ameliorate concerns that it undermines the independence of the nation’s anti-corruption bodies. This acknowledgment lacks the flare of competing pronouncements that the disbandment, or continued existence, of the DSO will precipitate a crisis, yet warrants recognition in any evaluation of the new unit’s prospects for success.
The overarching argument against the bills when they were introduced in May 2008 remains cogent. The argument is that disbanding the DSO and reconstituting it under SAPS would disrupt the prosecution-led “troika model” credited for the unit’s success and usurp its institutional independence.
Yet many of the supporting arguments proffered as evidence of the DPCI’s inadequate design no longer apply. Those arguments rested on the contention that the bills concentrated undue authority in the National Commissioner of Police – an office called into doubt, if not disrepute, by the DSO’s corruption charges against Selebi.
In its initial form, the SAPS Amendment Bill empowered the National Commissioner to appoint the head of the directorate, relegated that head to a lower rank than his DSO predecessor, and eliminated the unit’s authority to initiate investigations without a referral from the National Commissioner.
None of those provisions survived intact. The final legislation provide that the Minister of Safety and Security, not the National Commissioner, shall appoint the head of the directorate, elevates his rank to Deputy National Commissioner, and authorises him to initiate investigations without awaiting a referral.
Taking cues from the Khampepe Commission, legislators also provided for a joint-Operational Committee to monitor the unit’s secondment of outside officers, and a retired judge to review complaints. The Khampepe Commission was appointed by former President Thabo Mbeki to evaluate the DSO and was sharply critical of the Ministerial Coordinating Committee’s efforts to facilitate its cooperation with other law enforcement bodies.
Notwithstanding these changes, concerns regarding the new unit’s independence and insulation from executive pressure persist.
First, as Deputy National Commissioner, the head of the DPCI remains answerable to the National Commissioner of Police. The National Commissioner, in turn, enjoys less protection against presidential removal than the National Director of Public Prosecutions (NDPP), rendering him – and his selection for DPCI head – more vulnerable to executive pressure than his NPA counterpart.
Second, under the new legislation, the National Commissioner will function as the DPCI’s accounting officer, thereby retaining control of the unit’s finances and further circumscribing its independence.
Third, public sparring between the DSO and SAPS over their respective mandates – and more recently, over the execution of subpoenas against the police in the Selebi investigation – renews concerns over the practical restraints prosecutors seconded to the new unit will face. The new legislation requires the NDPP to maintain a “dedicated component of prosecutors” to assist the DPCI in its investigations. It prohibits these “investigative” prosecutors, however, from participating in the subsequent prosecution of their targets. Whether this bifurcation of duties will relieve the turf wars between SAPS and the NPA or merely restrict prosecutors’ capacity to pursue public corruption without fear or favour, remains to be seen.
These are valid concerns. The problem is that rather than address them in a manner that acknowledges the bills’ moderate improvements and existing shortcomings, the parties regress too easily into a debate over the fallibility of the DSO, or the forces that brought it down.
This may not surprise; critics are loathe to cede credibility to the process that begat the bills, and proponents may fear that acknowledging the virtues of the DSO’s independence will lend legitimacy to its pursuit of Selebi and Jacob Zuma. Neither does pre-election rhetoric generally err towards nuance.
Nevertheless, the current discourse debilitates either unit’s post-election sustainability by framing the debate in terms that predispose the “losing” constituency to deem the surviving body illegitimate.
Each side’s focus on curtailing the sins of the other tends to blur the distinction between the structural weaknesses of South Africa’s anti-corruption framework and the failures of those individuals charged with implementing it. While the two certainly bear some relation (as inadequate safeguards foster conditions ripe for abuse by corrupt individuals), sustainable reforms must be designed to outlive any one set of “bad apples”, a point often lost in the flurry of cross-accusations over corrupt police chiefs and overzealous prosecutors.
More troubling still, the current discourse does not simply reinforce public divisions over the criminal justice sector; it appears to deepen them. Though ostensibly voicing structural concerns, the parties’ words demarcate more contentious fault lines – the DSO vs. ANC, the NPA vs. SAPS – that leave increasingly little room for common ground. Those who support the DSO harbor a racist agenda; those who support the DPCI condone “crony politics”, and “success” requires one side to vanquish the other.
This cannot serve the country’s anti-corruption interests. That conflicting views of the nation’s law enforcement bodies will persist goes without saying. Yet debating the country’s anti-corruption unit in terms that necessarily diminish, rather than develop, our mutual investment in its success does that unit a disservice. In the name of building public trust and legitimacy, it renders both more elusive.
If the new administration, to be elected in April, is genuine about building a system of national integrity that tackles corruption in the public and private sector then it has to prioritise the strengthening of the new anti-corruption body. This has to happen away from the electioneering and focus on individual politicians who clouded the debate on the dissolution of the DSO. Rather it requires a renewed effort by the Ministries of Justice and Safety and Security to recommit to integrity and build support for the DPCI by both directly engaging the concerns of its critics and supporting the institution in its investigation of corrupt elites.
Chartey Quarcoo is a research volunteer in the Corruption & Governance Programme, ISS Cape Town and a Harvard University Sheldon Fellow