There are moves in high places to disband the Scorpions, the investigative branch or Directorate of Special Operations of the National Prosecuting Authority (NPA). The NEC of the ANC, newly appointed at Polokwane, has given instructions to the government to rush the process of disbandment of the Scorpions through parliament by mid-year. This time-table of frantic, but allegedly ‘do-able' activity, is quite co-incidentally designed to exterminate the Scorpions before the commencement of Jacob Zuma's criminal trial on August 4 2008.
As a comprehensive charge sheet has already been served and the prosecutors are ready to proceed, the disbandment is unlikely to have any discernable direct effect on the prosecution of Zuma.
The process of disbanding the Scorpions is manifestly fraught with difficulties of an administrative and legal nature which will give the public service numerous structural and labour headaches. The question of constitutional principle which the public administration ought to be addressing first is whether the Scorpions should and can be disbanded at all. The answer, purely as a matter of constitutional principle, would appear to be no.
Those in the public administration tasked with ‘unscrambling the eggs' which disbanding the Scorpions will involve, will do well to bear in mind that the public service they provide in giving effect to the NEC instruction to Cabinet is required to be given impartially, fairly, equitably and without bias. This is what is prescribed in section 195(1)(d) of the Constitution. These requirements are too often honoured in the breach as the ANC strives for complete hegemony and control of all of the levers of power in the state. This striving is in accordance with the precepts of its ‘national democratic revolution'. In a free country any political party is, of course, entitled to a policy platform, provided always that the aims and objectives of the party do not fall foul of the constitution of the land. Our Constitution in effect sets the ground rules according to which the country functions and in terms of which political parties, all spheres of government and indeed everybody else, must act.
The plan to disband the Scorpions would appear to fall foul of these ground rules. Quite apart from the need for a fair, impartial, equitable and unbiased public administration, there are specific requirements in the Constitution concerning the NPA which do not appear to have been properly taken into consideration by the ANC when it resolved that the Scorpions be disbanded. In section 179(4) the prescription that the N PA exercises its functions without fear, favour or prejudice is spelt out for incorporation in national legislation. More pertinently in the present context, section 179(2) gives the NPA the power to institute criminal proceedings "and to carry out any necessary functions incidental to instituting criminal proceedings."
These words are significant as they provide the constitutional justification for the legislation in terms of which the Scorpions were established almost ten years ago.
A predecessor of the Scorpions, the Heath Commission, was swiftly disbanded when it started sniffing around the darker corners of the arms deal which continues to haunt the ANC leadership. The Scorpions' constitutional position is far stronger than that of the Heath Commission, which was presided over by a judge and was found to be an unacceptable constitutional anomaly by the Constitutional Court. This is not the position with the Scorpions.
The ANC's justification for the disbandment of the Scorpions is that constitutionally there should be one police service. This does not stand up to scrutiny. Section 205(1) of the Constitution contemplates a police service "at national, provincial and, where appropriate, local spheres of government." It does not require a single police service either expressly or by implication. The existence of separate municipal police in the larger cities shows that section 205 and the Constitution in general has not hitherto been understood to prescribe a single police service. On the contrary, section 199(3) expressly provides for the establishment of "other armed organization or services."
This is precisely what the Scorpions are. Their activities fit neatly and properly into the formulation "to carry out any necessary functions incidental to instituting criminal proceedings." It is unarguable that such functions are not constitutional or not necessary.
In contradistinction to section 205, it is expressly stated in section 179(1) of the Constitution that "there is a single national prosecuting authority." The need to have Scorpions as required by section 1 79(2) of the Constitution is thrown into sharp relief when one considers the fraught path the prosecution service has to tread when powerful persons in high political places failfoul of the law.
The Zurna and Selebi cases are but two prominent examples of this. According to some press reports, up to a third of the NEC of the ANC are, or have been, the subject of the attentions of the Scorpions for fraud and corruption, inter alia. The current ANC leadership seems to be a forgiving "collective" and apparently sees no danger in electing persons convicted or suspected of serious criminal activity to its highest body. Zuma's election while his personal financial advisor serves a 15 year sentence for corrupting him and while criminal charges of varied and serious nature are pending against him illustrates this, as does the overwhelming popular support of the likes of Winnie Madikizela-Mandela (kidnapping and fraud) and Tony Yengeni (fraud). Whether this is the way the electorate views convicted criminals in high places remains to be seen.
On any reading of the books recently published by Andrew Feinstein and Terry Crawford-Browne, it is obvious that Zurna was a minor player in the arms deal. The R500,000 a year it was conclusively proved in the Shaik trial that Zuma received from French arms manufacturer Thint, was but the left over crumbs of the "commissions" or "necessary expenses" paid during the negotiation of the arms deal.
The NEC's high level but secret inquiry into the arms deal simply throws more fuel on the fires of speculation already raging.
When research into police matters finds that about 10% of the service is corrupt, it should come as no surprise that Selebi remained untouched by his own underlings and that the machinery of state was used to harass and intimidate the Scorpions. Top SAPS management is flooded with former MK cadres and loyal ANC members, deployed there in pursuance of the ‘hands on all levers of state power' thinking of the ANC.
The public service must consider the constitutionality of the disbandment of the Scorpions at the behest of those who the Scorpions have under investigation or suspicion of criminality. The opposition needs to place the process of disbanding the Scorpions under scrutiny and, if warranted, approach the Courts to prevent any mala fide or unconstitutional changes to the status quo under 179(2). The Scorpions themselves should fight their demise tooth and nail - they are central to the NPA's corruption fighting capacity, especially at a time when our top policeman is facing serious charges. Civil society organisations should support the continued existence of the Scorpions. If the Scorpions go it will be the public's loss. The rule of law, so necessary for the civilized survival of the nation, will be further undermined by their departure.
Advocate Paul Hoffman SC is the Director of the F.W. de Klerk Foundation's Centre for Constitutional Rights. This article appeared in the centre's publication Conswatch, February 2008
