The post-Polokwane, Zuma-led African National Congress (ANC) has started its political life beset by a fundamental contradiction that has disturbing implications for the ANC and South Africans generally.

The disquieting connotations will become even graver if Jacob Zuma - who trounced Thabo Mbeki in their election contest for the ANC presidency at the ANC's 52nd national conference at the University of Limpopo, near Polokwane - becomes South Africa's president next year.

The contradiction lies in the juxtaposition of two developments in the closing stages of the Polokwane conference. The first is contained in Zuma's inaugural speech as the ANC's new president, in which he identified crime as a "counter-revolutionary force" and a threat to economic growth and social stability. The second is embedded in a resolution on peace and stability which states simply that the Directorate of Special Operations (DSO), aka the Scorpions, will be dissolved and that its investigators will be relocated to the South African Police Service (SAPS).

It is a contradiction in terms for Zuma to identify crime as a major challenge in one breath, and in the next to sanction the dissolution of the Scorpions, post-apartheid South Africa's most successful law enforcement agency, particularly in relation to corruption and related crimes.

Zuma and his lieutenants in the ANC do not see the dissolution as contradictory to his stated objective of mobilising the nation against crime. They dignify it with seemingly laudable motives which, on closer inspection, are questionable, if not meretricious. Their rationale is misleading rather then informative.

Two official reasons are cited by leaders of the post-Polokwane ANC for the decision to dissolve the Scorpions: the need to regularise a purported constitutional contravention resulting from the establishment of the Scorpions, and the necessity to strengthen the criminal justice system by establishing a single police force under the aegis of the ministry of safety and security.

The resolution relating to the Scorpions adopted at the Polokwane conference states: "The constitutional imperative that there should be a single police service should be implemented ... The Directorate of Special Operations (should therefore) be dissolved." The implication is that the dissolution of the Scorpions is indispensable to the fulfilment of a constitutional requirement, an interpretation that projects the incoming ANC leadership as guardians of the constitution.

But, as Judge Sisi Khampepe notes in the report of her commission of inquiry into the future of the Scorpions, the establishment of the Scorpions is not in contravention of the constitution. While clause 199 (1) of the constitution states that there should only be one defence force and one police service, it does not prohibit the establishment of supplementary or complementary law enforcement agencies, as the Constitutional Court made clear in a 2002 judgement on the matter.

Elucidating on the Constitutional Court judgement, Khampepe states inter alia that the relevant clause is an injunction for the amalgamation of the various police forces that existed under the previous government - the South African Police and the police forces of the putatively independent black states - into a single force.

Further extrapolation defines clause 199 (1) as an injunction for the unification of the multiplicity of police forces that existed under the ancient regime into the present SAPS, not a prohibition on the establishment of a specialist law enforcement agency cast in the mould of the Scorpions.

Two conclusions follow from the above exposition: firstly, that Zuma's advisors must have been aware of the Constitutional Court ruling; and, secondly, that they chose to ignore it in order to provide themselves with a quasi-legal reason for dissolving the Scorpions.

Another pseudo-legal reason has been offered in the past few months by Mathews Phosa, the ANC's new treasurer-general, and Mo Shaik, an advisor to Jacob Zuma, which should be mentioned. They contend that the existence within the National Prosecuting Authority (NPA) of an investigative unit - the Scorpions - contravenes the "separation of powers" doctrine. But this doctrine pertains to the executive, legislative and judicial components of government, whereas the policing, prosecutorial and prison functions all form part of the criminal justice system or, even more broadly, the judicial system.

On that note, two further points are in order: close co-operations between the prosecutorial and policing functions of government long preceded the formation of the Scorpions in 2001, while the possession by the NPA of prosecutorial and investigative powers did not - and does not - impinge on the right of alleged offenders to appear before open courts presided over by independent judicial officers sworn to uphold the rule of law.

The second official reason offered for the dissolution of the Scorpions - the need to strength the criminal justice system by integrating investigative officers from the Scorpions with those of the Organised Crime Unit of the SAPS - is not entirely devoid of authenticity. It is hard to see, however, how the criminal justice system will be strengthened by dismantling its most successful component. It runs counter to the wisdom of the colloquial maxim: "If it ain't broke, don't fix it."

 It is, of course, theoretically possible that the relocation of the investigating arm of the Scorpions will strengthen the investigative capacity of the proposed new amalgamated SAPS unit. Whether the hypothetical improvement that the Scorpions could add to the proposed new unit will compensate for the loss to the criminal justice system of the Scorpions per se is doubtful, to say the least.

There is another potential problem, however. Many of the investigators in the Scorpions at present may turn down the offer of absorption into the SAPS, and seek employment in the plethora of private security companies or the security departments of the major corporations. If so, their considerable talents will be lost to, instead of employed in, the SAPS.

Business Against Crime (BAC), which was formed in 1995 to fulfil a request by former President Nelson Mandela for business to joint the fight against crime, and which is today an active partner with government in the campaign to contain and reduce crime, is "fundamentally opposed" to the dissolution of the Scorpions and its incorporation into the SAPS.

One of the central reasons for BAC's opposition is its conviction that the independence of the Scorpions is indispensable to its success in investigating corruption without, as the constitution puts it, fear, favour or prejudice. Noting that while the ANC's Polokwane resolution refers to the dissolution of the Scorpions, President Thabo Mbeki talks of "restructuring" the criminal justice system, BAC argues that whatever changes are envisaged, and however they are packaged and labelled, the question at stake is whether the changes will heighten or diminish the power of the Scorpions to investigate crime.

It identifies three "objective tests" to determine the answer to the vital question:

• whether the Scorpions will retain their existing prosecutorial and investigative skills;
•  whether the Scorpions will be able to operate as a cohesive unit without being dependent on the authority or resources of another institution; and,
•  whether they will have the "independent capacity and the opportunity" to investigate corruption and crime at the highest echelons of society, including the most senior officials and ministers in government.

The answers to these questions are fairly obvious. They are: no, no again, and no for the third time.

No, the Scorpions will not possess their existing prosecutorial powers. No, the Scorpions will not be an independent cohesive unit, as, according to the Polokwane resolution, its investigative officers will be amalgamated into a new unit, with the Organised Crime Unit, in the SAPS, and therefore subject to the authority of the National Commissioner of Police. No, this unit will not have the capacity and opportunity to investigate corruption and crime at the highest level of authority, if the National Commissioner of Police vetoes the investigation.

It is, of course, common knowledge that National Police Commissioner, Jackie Selebi, has been indicted on charges of corruption, fraud and racketeering. It is common knowledge, too, that the Scorpions conducted the investigation into his alleged contraventions of the law, and obtained sufficient prima facie evidence against Selebi to arrest and charge him.

None of these steps would have been taken had the Scorpions not existed or if they had been a unit under the ultimate authority of Selebi.

Having questioned the validity of the official reasons advanced for the pending dissolution of the Scorpions - the Zuma-led ANC has set 30 June as the deadline - it is opportune to identify the real reason for their hostility.

The drive to dissolve the Scorpions is motivated by hostility towards the elite unit by leading members of the Zuma-led ANC, from Zuma downwards. The genesis of the enmity lies in the role the Scorpions played in investigating the financial probity of Zuma and in indicting him for corruption, as well as in their role in investigating Winnie Madikizela-Mandela, a former ANC Women's League president, and Tony Yengeni, a former ANC chief whip in the National Assembly - both of whom were later convicted of fraud.

Another ANC luminary who was scrutinised by the Scorpions is Ngoako Ramatlhodi, a former premier of Limpopo, who was subsequently bypassed for promotion, presumably because of questions about his financial rectitude.

Moving a little down the hierarchy of power in the ANC, members embittered against the Scorpions include the parliamentarians who were investigated by the unit for fraud in the parliamentary "travelgate" scandal. Prominent among them is Nyami Booi, who led the charges against the Scorpions in the National Assembly.

The dislike of the Scorpions in the Zuma camp coalesced with animosity towards Mbeki, unsurprising given the widespread belief that Mbeki was using the Scorpions against his rivals in the ANC - the most prominent of whom was Zuma, whom he dismissed as national Deputy President in June 2005 after Zuma's financial adviser and benefactor, Shabir Shaik, was convicted of corruption and fraud.

Another component of anti-Scorpion sentiment in the Zuma camp is the conviction that the unit had an anti-ANC bias, and was seeking to hobble the movement by discrediting its leaders. It is manifested in a recent observation by the newly elected ANC Secretary-General, Gwede Mantashe, who pointedly recalled that Gerrie Nel, who heads the Scorpions in Gauteng, is a former member of the police riot squad that was used against anti-apartheid demonstrators.

Countervailing views against these perceptions need to be brought into the equation.

The allegation that the Scorpions did the bidding of Mbeki is contradicted by their arrest and indictment of one of Mbeki's prominent political allies, National Police Commissioner Selebi, notwithstanding Mbeki's attempt to protect him by suspending the National Director of Prosecutions, Vusi Pikoli, after he obtained arrest and search warrants against Selebi.

Though they attracted a great deal of media attention, the investigations by the Scorpions into the suspected venality of ANC luminaries comprise only a small proportion of their overall activities since their formal establishment in 2001.

As noted by the Sunday Times in an article headlined "Unit struck terror into a long list of bad guys", successful investigations and convictions by the Scorpions include:

• the conviction of some 200 people involved in urban terror (many of whom were members of the vigilante organisation People Against Gangsters and Drugs), taxi war and political violence;
•  the arrest of about 2 220 syndicate chiefs and their lieutenants, many of whom were involved in the smuggling of highly addictive drugs; and
•  the apprehension and indictment of Glen Agliotti, a don of the South African "mafia", for the murder of mining magnate Brett Kebble.

An observation by Penuell Maduna, a former Minister of Justice who presided over the Scorpions in the first few years of their existence, is worth quoting: the National Director of Prosecutions has to report to Parliament on the NPA, including the Scorpions, and the ANC-dominated National Assembly would surely have held him to account if the Scorpions were pursing a vendetta against the ANC per se.

In conclusion, it is relevant to note that the Scorpions - modelled on the Federal Bureau of Investigation (FBI) in the United States, and whose initial recruits were trained by the FBI and Scotland Yard - were formed by Mbeki with a mandate to counter the threat of organised crime. The jury is still out, however, on whether Mbeki did his best to protect them against Zuma and his rampant legionnaires, or whether he merely cloaked his capitulation in respectable colours.

This article was originally published in the Helen Suzman Foundation journal, Focus Issue 49 1st Quarter 2008