Dissolve the Scorpions, Intensify the fight against crime

To some, the release of the Khampepe Commission Report (KC), including its timing and the predictable and well-timed reaction of the opposition, may seem to be a deliberate and calculated attempt to divert, if not delay or even scupper the legislative processes to disband the Scorpions. It may well be so.

Let us not be distracted, the Scorpions must go!
However we should not for a moment be distracted by all these antics. The SACP reaffirms its complete support for the disbanding of the Directorate of Special Operations (DSO), the Scorpions, and its incorporation into the South African Police Service (SAPS) as a legitimate and necessary political and legal decision to streamline and strengthen the capacity of government to fight crime.

Khampepe vindicates us!
Contrary to the otherwise expected propaganda from those opposed to the dissolution of the Scorpions, all the substantive arguments we have made against the continued existence of the DSO are actually supported by the major findings of the KC, as we shall demonstrate below.

There is only one substantive difference between what we have argued and the recommendations of the KC; it is that the KC recommends that the DSO must be maintained, including its location within the National Prosecutions Authority (NPA), albeit with a re-arrangement that it accounts to the Minister of Safety and Security in relation to its investigative functions.

We are however of the view that there is a fundamental contradiction between the major findings of the KC and its substantive recommendation on the location of the DSO.

The reason for this disjuncture is that the major findings of the KC about the major flaws in the functioning of the DSO are merely reduced to things that can be procedurally corrected (eg improving oversight and mechanisms for accountability, establishment of new rules and structures, etc). Yet these are not just procedural flaws or negligent actions, but are structural flaws that are embedded, and cannot be separated from the structural location and the modus operandi of the DSO. Structural problems require structural solutions! I will return to this point later.

Double-dipping: Illegal gathering of intelligence!
Amongst some of the major findings of the KC, a matter that has been of serious concern to us, is that the DSO has actually been conducting illegal and unconstitutional intelligence gathering, not only crime, but also political intelligence, in a manner that also could endanger the security of the state. The KC found that:

"The national mandate for the co-ordination of crime intelligence rests with the crime intelligence division of the SAPS... In the light of the Constitutional provisions, the National Strategic Intelligence Act, and the mandate given to the (SAPS) Crime Intelligence division of the SAPS, the DSO is not empowered to gather crime intelligence as intended in the National Strategic Intelligence Act... Upon the DSO's establishment, it [the DSO] was suppose to make use of the existing intelligence structures, something that did not happen".

Furthermore the KC is even more scathing about what is clearly illegal gathering of political intelligence by the DSO:

"There was evidence pointing to the fact that the DSO has liaisons with the foreign law enforcement and intelligence structures. If nothing else, this illustrates the dangers that lie in the conduct of the DSO stretching its 'information gathering' mandate to include 'intelligence'".

In addition not only did KC found that the DSO did not share its intelligence with the national co-ordinating intelligence gathering structure (NICOC), but does not even share this information with the SAPS and, further, that "It is both perplexing and perturbing that the DSO views its dependence on the intelligence agencies as a hindrance as opposed to an opportunity at greater collaboration and collective effort ... Co-ordination and co-operation between the NIA and DSO on criminal intelligence is practically non-existent".

This illegal gathering of both crime and political intelligence, and maintenance of relations with foreign intelligence agencies, without any oversight from properly established intelligence oversight structures constitutes one of the most serious illegal activities of the DSO and practically undermines the security of the state.

Further, the Joint Standing Committee on Intelligence (JSCI) found that the so-called Special Browse Mole Report was illegally produced by the DSO, and this has never been disputed or denied by the DSO. One very serious implication of the Special Browse Mole is that some of those investigated, like the President of the ANC, Cde Jacob Zuma, are actually facing a 'double' investigation by the DSO, a political and criminal investigation at the same time.

Hollywood: Violation of Constitutional Rights!
The other point we have consistently made in relation to the operations of the DSO is that it has operated in a manner that can, and actually may have, violated the constitutional rights of people under investigation. The KC finds, amongst others, that

"The improper media sensation associated with the investigation and/or arrest of some individuals resulting from the leaks in the DSO may open a practice that is inconsistent with the right to a fair trial guaranteed under section 35 of the constitution...

"Furthermore, I find that there is merit in the concern raised in evidence relating to the alleged abuse by the DSO with the regard to the manner in which it publicises its work in the media. This alleged conduct has attracted public criticism against the DSO of being 'FBI style', meaning that the DSO conducts its operations as though it were a law unto itself. There is indeed merit to this complaint".

Indeed we have consistently said that the DSO does operate as a 'law unto itself', not accountable to any of the oversight mechanisms in relation to its work. This alone, makes the DSO a threat to the safety, security and constitutional rights of South Africans, especially those who happen to be under investigation. The KC is even more scathing of these practices of the DSO:

"There was, in my view, no plausible reason furnished for this invidious conduct on the part of the DSO, which is to be frowned upon.

"I venture to opine that I find such conduct to be out of kilter with our constitution, reprehensible, unprofessional and corroding the public's confidence in the law enforcement agencies" (my emphases).

Use of private unvetted investigators!
There are a number of other findings in the KC that vindicates our condemnation of the DSO behaviour since its establishment, including violations of the NPA Act, public pronouncements on pending prosecutions, consistent media leaks from within the DSO, irregular collection of information and, most seriously, use of unvetted investigators and private security agencies. On the issue of unwarranted disclosures the KC found that:

"The Head of the DSO also admitted that there were unwarranted disclosures that were made from within their ranks. His view on the matter was that there should have been no disclosures prior to the accused appearing in court except in exceptional circumstances"

Interestingly, three years after the head of the DSO said this at the Commission, this is what the NPA did in announcing that the President of the ANC will again be recharged in the run up to, and immediately after the ANC's 52nd National Conference! This alone goes to show that the DSO (and the NPA) deliberately even violated its own commitments, thus showing that the rot had gone so deep into this structure that no amount of procedural or administrative tinkering with it would have changed anything, except the correct decision to disband it!

On the matter of using private and unvetted investigators the KC says,

"There was evidence suggesting that the DSO, in the discharge of its legislative mandate, does so through the use of private sector entities which are thereby likely to come into contact with sensitive intelligence... I am of the firm view that whenever the DSO engages private sector entities to assist it in performing its duties, it must have such entities properly vetted by the NIA"

"When the law requires that specific categories of personnel with the DSO must undergo security clearance, by NIA, it is the responsibility of the DSO to respect that legislative injunction. It is unacceptable that the DSO would expose matters of national security envisaged by the NPA Act to people who have not been properly accredited to handle such information".

The above finding by the KC in fact rubbishes the argument for instance made by Prof Shadrack Ghutto - now a leading apologist for these shenanigans of the Scorpions - on SABC radio on 6 May to the effect that failure to vet DSO investigators is the responsibility of the NIA and other intelligence agencies.

Reprehensible behaviour!
There are many other points that could be highlighted in the KC that conclusively proves that we have been correct in calling for the dissolution of the DSO. It is very interesting that the opposition parties and the media have generally been very silent or muted on many of these dastardly activities of the DSO, which are "reprehensible, unprofessional and corroding the public's confidence in the law enforcement agencies".

Disturbing lack of action or information by President Mbeki!
Of even more serious concern to the SACP, which is even a stronger case for the DSO to be disbanded, as well as conclusive proof of the structural flaws on the location of the DSO, is the singular lack of action or visible action by President Mbeki and government to decisively act against the Scorpions, in the face of such serious abuses by this institution.

In fact government has disturbingly not acted on many recommendations made by a range of institutions on the behaviour of both the DSO and the NPA, ranging from the recommendations of the Public Protector on the abuse of President Zuma's rights, to the public mauling of this institution by the former National Director of Public Prosecutions, the Hefer Commission recommendations on the leaks within the DSO and the NPA, on the JSCI report, and now the many recommendations of the Khampepe Commission.

If as government claims, it has acted on these, it is indeed very disturbing that the people of South Africa have not been taken into confidence. Otherwise what is the point of establishing public judicial commissions and enquiries, only to deal with its recommendations, if ever, outside of the view of the public?

It is this failure of government to act decisively and purposefully and as much as possible take the public into its confidence that has encouraged the DSO to continue with its shenanigans, and transformed its problems into intractable structural flaws!

Khampepe Recommendations Contradictory!
To conclude, what we find most perplexing, are the conclusions of the Khampepe Commission given its very scathing findings about the behaviour of the DSO and, need we repeat, the very glaring failures by both the NPA and government to reign in this institution. By way of illustration, the KC observes that:

"The SAPS pointed out that in terms of determining priorities in a holistic fashion, the Minister of Safety and Security must have authority to determine all priorities and threats in the country. The SAPS decried the situation where some of the most important threats relating to organised crime operationally fall out of the command and control of the Minister of Safety and Security.

"The SAPS argued that the arrangement did not reflect sound principles of governance. It therefore argued that the DSO was, in this respect, a law unto itself and capable of unilateral action. The DSO was even able to determine crime threats and priorities outside of the ambit of the Safety and Security Minister and without any input by the latter

"This argument is, in my view, compelling. It is both untenable and anomalous that the Minister of Safety and Security who has the overall responsibility to address the overall policing/investigative needs and priorities of the Republic should not exercise any control over the investigative component of the DSO considering the wide and permissive mandate of the DSO relating to organised crime"

This is indeed a fundamental finding by the KC, and even points to a further anomaly that, as far as we are concerned, goes to the heart of the structural problems with the DSO, "The (above) anomaly arises because the Minister for Justice and Constitutional Development does not account to parliament in respect of the law enforcement aspects of the work of the DSO".

As far as we are concerned these findings should have necessitated a conclusion that the DSO should be located to the SAPS, as it is only the Minister of Safety and Security who accounts to parliament in respect of law enforcement. This should have been one of the more compelling evidence for the relocation given the fact that the KC itself does acknowledge the fact that law enforcement and crime investigation is the overall responsibility of the SAPS, and further concludes on the issue of the unhealthy competition between the DSO and SAPS thus:

"It is common cause that there is resistance by both the DSO investigators and prosecutors to relocate to the SAPS. Whilst this may be within their right to do so, it remains a conduct that raises legal eyebrows as it is suggestive of a lack of shared objective amongst officials of the law enforcement agencies to perform their functions in fighting crime irrespective of where one's particular institution is located.

"The scathing criticisms levelled at the DSO cannot be shrugged off easily. The manner in which the legal mandate of the DSO has been implemented does afford the DSO the unfair advantage of case selection for its investigation. It is an act which, in itself, causes conflict and tensions between the DSO and the SAPS"

The KC seems to be fully aware of these problems, but unfortunately chooses a very inelegant route, that of dual accountability of the DSO to both NPA and Minister of Safety and Security, with its primary location remaining in the former. This is simply unworkable!

The KC is also aware that combining investigative and prosecutorial functions in one institution may compromise the independence of the prosecutors and "may expose them to become competent and compellable witnesses...", the Commission concludes by relying only prosecutorial integrity rather than structural arrangement. The KC argues that "...it is my considered view that the integrity of a particular prosecutor is a vital factor in the independence of his/her office". No, we beg to differ, the integrity of prosecutor is a necessary but not sufficient condition in the performance of their duties. Structural arrangements aimed at ensuring prosecutorial independence absolutely vital, and that is the import of our constitution in entrenching the separation of powers.

Let's intensify the fight against all forms of crime!
The argument that the ANC, supported by its allies, resolved to dissolve the DSO because it is investigating some of its leaders is therefore nonsensical. It has become a useful propaganda tool by our detractors and enemies, to try and divert attention from the very serious of abuse of power by the DSO. We remain firmly committed to fighting crime and that no one is above the law. To this end we do need to drastically increase our capacity to fight crime, including organised crime.

The SACP wishes to reiterate its argument that the issue of the location of the DSO must not detract us from the overall task of the transformation of the entire criminal justice system. The dissolution of the DSO and its relocation to the SAPS is a necessary component in strengthening our criminal justice system.

Asikhulume!

This article by the SACP General Secretary, Blade Nzimande, was originally published in Umsebenzi Online Volume 7, No. 7, May 7 2008