15 February 2008: South Africa: Utmost Care Needed in Disbanding the Scorpions

It seems the future of the National Prosecuting Authority’s Directorate of Special Operations (DSO), generally known as the Scorpions, has now been decided upon. The official word from the Minister of Safety and Security, Mr. Charles Nqakula, is that the Scorpions will be merged with the police organised crime unit. The South African Police Service (SAPS) will have overall responsibility for the new unit.

This is undoubtedly a victory for people who have been calling for the relocation of the Scorpions from the National Prosecuting Authority (NPA) to the SAPS. The African National Congress (ANC) decided as early as June 2007 that the relocation should be effected. The Treasurer General of the ANC, Mr. Matthews Phosa, has been consistent in his criticism of the Scorpions. In a recent television interview Mr Phosa argued that the Scorpions’ location in the NPA violates the doctrine of separation of powers, and as a result the Scorpions have been used as an instrument to target political leaders. He claims in possession of an affidavit by a senior member of the DSO that supports his argument. The affidavit allegedly shows that the head of the Scorpions has asked his colleagues to keep the cases of leading ANC members such as Mr. Jacob Zuma and Adv. Ngoako Ramatlhodi in the media, so as to ensure the continued existence of the Scorpions.

Now that the future of the Scorpions has been decided upon, the question is whether this move will boost the crime fighting capacity of the SAPS. I agree with those who argue that the relocation of the Scorpions, in itself, does not have to affect the crime fighting capacity of our law enforcement agencies negatively. In others words, it is possible to retain the capacity of the Scorpions even if they are located in the SAPS. However, the SAPS is still struggling with the unintended consequences of its restructuring.

As many will remember, the restructuring of the SAPS revolved around issues of capacity. As part of the restructuring members of the SAPS’ specialised units were sent to police stations where, it was argued, their expertise and skills were needed most. When these specialised units were disbanded, those in favour of the move argued that the capacity inherent in the specialised units could be retained even after the units themselves were disbanded. Unfortunately, emerging evidence shows that this was not necessarily a move that benefited society in general and victims of crime in particular. There is always a disjuncture between grand plans and implementation. It seems clear, for example, that service delivery to children affected by crime, including sexual abuse, has been negatively affected by the closure of the specialised units.

The same could happen to the Scorpions unless measures are put in place to ensure that the service delivery capacity of this unit is preserved. Those in authority, therefore, have to be very careful in determining exactly how this is done. For instance, will members of the Scorpions still have the advantage of prosecutorial guidance from the beginning of the case to the end? If so, how is this going to be achieved in the context of the SAPS? It could well be that the new unit proposed by the Minister of Safety and Security will have some prosecutorial capacity in it. But this is doubtful because, were this to happen it would fly in the face of one of the main reasons advanced for the disbandment, namely the assertion by Mr. Phosa and others that the location of the Scorpions in the NPA violates the doctrine of separation of powers. Perhaps the services of prosecutors can still be utilised without investigators and prosecutors being under the same organisational umbrella. But day to day experiences show that South Africa is not doing well in terms of investigator-prosecutor co-ordination. Often prosecutorial input is not made until a case is ready for trial, which often results in negative consequences such as withdrawal or postponement of cases, undue acquittals, and so on.

It is interesting that the disbandment of the Scorpions happens at a time when the national police commissioner is facing serious charges. Indications are that, had the Scorpions been part of the SAPS, the national commissioner would not be facing charges today. Who in the SAPS would have had the capacity, or indeed the courage, to investigate the national commissioner? If the commissioner has indeed committed the alleged offences, common sense dictates that he would have done everything in his power to stop the investigations. Some people rightly argue that we have oversight bodies such as the Independent Complaints Directorate (ICD) who could undertake investigations of this kind. But this seems to be another case of a grand plan without implementation capacity. The ICD just does not have the investigative resources that are currently available to the Scorpions. On an ominous note, the national commissioner is on record saying that the ICD has outlived its usefulness.

It seems, therefore, that the disbandment of the Scorpions is not an advisable move. Perhaps the DSO is guilty of the charges levelled against it. Perhaps it is true the Scorpions have been used as instruments to target political opponents. And perhaps they have indeed violated the human rights of citizens in carrying out their investigations. But even if this turns out to be the case, is disbanding them really the solution? I do not think so especially given the haste with which this process has been undertaken. I do not think that by June 2008— the deadline for the disbandment of the Scorpions—we will have systems in place to ensure that the much needed capacity of the Scorpions is retained, no matter where they are placed.

Boyane Tshehla, Senior Research Fellow, Crime and Justice Programme, ISS Tshwane (Pretoria)