22 January 2008: Had the Scorpions Been Part of the SAPS, Would Selebi be Facing Charges?

The South African Police Service (SAPS) and the Directorate of Special Operations (DSO/Scorpions) have been in the media for reasons that should not make either of the two law enforcement agencies proud. First South Africans read with shock newspaper reports that implicated the national commissioner of the SAPS, Mr Jacob “Jackie” Selebi, in corruption. The national commissioner assured the public that he has done nothing wrong and that the media reports were not to be believed. For that reason he remained in office despite calls for him to step down. The president also requested the public to trust him on the Selebi issue. In the meantime the Scorpions continued with investigations against the national commissioner.

It is now clear that the national commissioner has a case to answer. He has also stepped down in what is being called an extended leave of absence, though only after approaching the high court in an attempt to prevent the National Prosecuting Authority (NPA) from charging him.

While the current absence of the national commissioner from the SAPS is laudable, there are a number of issues that are worrisome. For instance, should the national commissioner not have taken leave earlier than he did? It is true that all are equal before the law, and our criminal justice system is rooted in the principle of presumption of innocence until proven guilty. The mere making of allegations does not constitute guilt. If one follows that logic, then the commissioner was right to remain in his position. But it is not that simple. I am of the view that once the commissioner was certain that these serious allegations were made against him he should have stepped down until the criminal justice process had run its course. Alternatively the president should have ordered an inquiry into the allegations made against the commissioner (in terms of the South African Police Act). The fact that the commissioner remained in office during the course of investigations against him gives rise to the suspicion that he was in a position to use his position to interfere with the investigations.

The SAPS investigation of Adv. Nel, the lead investigator in the case against the national commissioner, did not help matters. On top of the earlier suspension of Adv. Pikoli, this action raises considerable suspicion that what we are seeing is part of a ‘turf war’ between the Scorpions and the SAPS. Adv. Nel was apparently investigated by the SAPS and then arrested despite prosecutors informing the police that there was not sufficient evidence to prosecute him. Adv. Pikoli’s suspension seems also to be linked to the Selebi investigation. The investigation of Mr. Selebi has therefore created or intensified suspicion and lack of trust between the DSO and the SAPS. It is not surprising that the SAPS do not believe the NPA when they say there is not enough evidence to charge Adv. Nel. Instead, the NPA is seen to be protecting one of its own.

A related issue is that the African National Congress (ANC) has resolved that the DSO must reside in the SAPS. Without dealing with the reasons for this resolution, a question that confronts one is this: would the national commissioner be facing the charges that he is facing now had the DSO been part of the SAPS? It seems unlikely. The national commissioner would have had to be part of the decisions right from the beginning or would have known about the investigation and potentially done something about it. The broader questions, therefore, is whether South Africa has systems in place to ensure that the national commissioner—be it Mr. Selebi or any other—can be investigated should s/he break the law. Before placing the DSO under SAPS, South Africa has to be certain that there are measures in place to practically deal with situations of this nature.

Boyane Tshehla, Head: Crime and Justice Programme, ISS Tshwane (Pretoria)