31 January 2008: The Case For and Against the Scorpions

The Directorate of Special Operations (Scorpions) was created during 2000/01, as a component of the National Prosecuting Authority (NPA). The idea was to create an FBI-like law enforcement agency that would drastically improve the ability of the state to fight organised crime and high profile corruption. This initiative came as a consequence of the alarmingly high levels of serious and violent crime in South Africa. More and more questions were being asked about the effectiveness of the South African Police Service (SAPS). Over the intervening years, and in spite of some growing pains and controversy, the Scorpions achieved a number of remarkable successes. Now, after only seven years, all of this appears to have been nothing more than a wasted experiment. The ANC, at their National Conference in Polokwane during December, took a policy decision to incorporate the Scorpions into the SAPS. It is not yet clear how the incorporation is to be practically carried out, but at this stage it may be useful to briefly consider some of the arguments for and against the existence of something like the Scorpions.

The police obviously resented the creation of another law enforcement body whose existence was justified on the basis of their perceived incompetence. Some of the methods of the Scorpions also did little to endear them to the police. The police, for example, claim that the Scorpions – at least initially – took over cases from them where there were good prospects for success and where the police already more or less solved the case. They also accused the Scorpions of using their successes in these cases to promote themselves through the media. Unlike the police tradition of carrying out arrests without media presence, the Scorpions seldom make an arrest without prominent media attention. The police also point out that the Scorpions can afford to be selective in the types of cases they investigate, whereas they (the police) have no choice and have to investigate all cases reported to them, even those with little or no prospects of success. According to the police this inevitably enhances the public perception that the Scorpions are more efficient and effective.

The public, on the other hand, have come to believe in and trust the Scorpions. When they have ‘sensitive’ information about organised crime or corrupt activities by prominent persons, it appears that people generally would rather approach the Scorpions than the police. Their preparedness to investigate and prosecute senior ANC and government officials such as Jacob Zuma and Jackie Selebi, in spite of serious criticism from within the ruling party, has significantly enhanced the public’s confidence in them. In the public mind the Scorpions is the only law enforcement body with the dedication and strength of conviction to investigate powerful people. In contrast, for example, the investigation that was made by the Independent Complaints Directorate (ICD) during 2006 into the initial allegations against Selebi was perceived as superficial, and their apparently hasty finding that there is no substance to the allegations was widely viewed as an attempt to quash the case.

The political context around the decision to ‘disband’ the Scorpions is more complex. Within political circles there are those who believe that the so-called ‘Mbeki camp’

abused the Scorpions in an attempt to neutralise political opposition (i.e. Zuma), while blocking them from acting against individuals within the Mbeki camp (i.e. Selebi). On the other hand there are those who view the Scorpions as the most effective state instrument in the fight against high profile corruption, including corruption by senior government officials. It is also believed that the support for its planned incorporation into the SAPS can only be interpreted as proof that some people would prefer the fight against corruption to be a little more selective and perhaps a little less effective. The closing of the police’s anti-corruption unit in 2001 also did little to promote public trust in the police’s (and government’s) commitment to fight corruption.

Arguments by the pro-incorporation camp that the existence of the Scorpions is a contravention of section 199 (1) of the Constitution is far from convincing. The creation of the Scorpions enjoyed widespread support within the ANC. In the preamble of the enabling legislation, the National Prosecuting Authority Amendment Act (No 61 of 2000), which obviously was passed by parliament, it is stated that “… the Constitution does not provide that the prevention, combating or investigation of crime is the exclusive function of any single institution”. Section 199 (1) only provides for ‘a single police service’. Other arguments about the need for incorporation arising from the need to address a lack of coordination and a perceived ‘turf war’ between the police and the Scorpions seem petty in the extreme when measured against the huge crime problems facing this country. With strong political will and leadership, and in the interest of the greater good of this country, these issues could certainly have been addressed.

It is also not a good idea, so to speak, to have all your eggs in the same basket. The Scorpions offer a law enforcement capability that makes an enormous contribution to the fight against crime and, if properly managed, should act also as a counterbalance to a powerful national police agency. In addition, it provides the public with an alternative in cases where, for legitimate reasons, they may not trust the police. The outcome of the court cases against both Zuma and Selebi should prove whether the Scorpions did in fact abuse their powers, or whether they have acted morally and legally correctly in bringing these charges. Perhaps, then, the decision to incorporate them into the police is a little premature.

Dr Johan Burger, Senior Researcher, Crime and Justice Programme, ISS Tshwane (Pretoria)