COSATU SUBMISSION ON THE NATIONAL PROSECUTING AUTHORITY AMENDMENT BILL [B23‑2008] AND THE SOUTH AFRICAN POLICE SERVICE AMENDMENT BILL [B30‑2008]
Presented to the Portfolio Committees on Justice and Constitutional Development and Safety and Security on 7 August 2008
1. INTRODUCTION
COSATU welcomes the opportunity make a submission on the National Prosecuting Authority Amendment Bill [B 23‑2008], and the South African Police Service Amendment Bill [B 30‑2008], hereafter respectively referred to as the NPAA Bill and the SAPSA Bill.
We fully support the government's decision to dissolve the Directorate of Special Operations (DSO), better known as the Scorpions and note that these bills are in line with resolutions passed by both the COSATU 9th Congress and the ANC's Polokwane Conference. The government is to be congratulated for responding promptly to the voice of the majority of the people as expressed in those resolutions.
We are well aware of the considerable controversy in response to the Cabinet decision to relocate the investigative capacity from the office of the National Director of Public Prosecutions to the South African Police Services (SAPS), including the mounting campaign from opposition political parties and certain civil society organisations against the above two Bills. Notwithstanding this we remain convinced that our support for the decision of the Cabinet is correct.
While we are fully in support of the objectives of combating crime (especially organised crime) and corruption including that within the SAPS, we see no reason why these cannot be addressed within and by amplifying the capacity of SAPS.
COSATU's concern has been that the Scorpions' existence as a branch of the National Directorate of Public Prosecutions blurred the necessary separation of functions between those investigating crime and those prosecuting the criminals. This led to the rights of individuals being compromised, and there was a growing tendency for officers to be diverted from the fight against crime to political campaigns against certain individuals.
As a separate 'elite' force they were not sufficiently subject to public accountability, but increasingly a law unto themselves. COSATU has also been concerned that their investigative work was not subject to the same oversight mechanisms as the SAPS and intelligence agencies.
The DSO/Scorpions shown by the so-called "Special Browse Mole Report", were also illegally and unofficially involved in collecting political intelligence, something that is beyond its mandate. It was also working illegally with foreign intelligence agencies; employing senior officials without requisite security clearance; made use of outsourced companies for intelligence gathering and analysis without first putting them through vetting process; as well as conducting investigations through the media without first informing individuals under investigation. All of this posed a very serious threat to the security of our country.
Nor has the Scorpions been successful in areas in which it is supposed to operate and specialise. This has been exposed in a article by George Fivaz and Gibson Njenje, former national police commissioner and NIA deputy head, "Admit it, the Scorpions failed" in the Sunday Times on 13 July), which asked, "Has the DSO done the job for which it was established?"
Contrasting the Scorpions' legislative mandate with its actual performance over the last seven years, Fivaz and Njenje's conclude that the unit "has not done the job that was its reason for existence. It has underperformed, it has divided rather than united, and it has left organised criminals as powerful as they were in 1999 - if not better able to resist policing efforts, and better resourced".
The head of the Scorpions' Crime Fighting Unit, Leonard McCarthy, admitted to Parliament in March 2008 that a perception that the Scorpions performed better than the police was misleading. The "85% success rate" it claimed was inflated, a consequence of the unit's practice of cherry picking cases with a potential for successful prosecution. McCarthy admitted that:
"85 percent success rate is really taken much too far in the public domain. It is not really a success indicator if you look at it in isolation, because the DSO has the ability to select its cases. I must also add that probably 25% of our cases are disposed of through plea-bargaining" (Sunday Independent, 2 March 2008).
COSATU remains totally committed to the fight against crime, including organised crime and corruptionregardless of who the criminals are. We do not believe that this fight will be advanced more effectively by incorporating the Scorpions' staff into the SAPS, as a parallel specialised unit tacking organised crime, and we shall be insisting that the united SAPS intensifies the war on crime in a more co-ordinated way.
However, we must pause to note the reality that crime is a social ill that is an expected reality in a country that is subject to almost 40% unemployment and massive levels of poverty and inequality. Even access to employment is not necessarily a way out of poverty, with approximately 65% of those with formal work earning less than R2500 a month. This underscores the need to address the root cause of crime as a social and economic issue, and one that cannot be eradicated through policing alone.
The ANC's decision to incorporate the DSO into the SAPS is part of its Conference resolution to bolster the country's criminal justice system through the integration and coordination of all crime fighting structures of the state. This will help to address the weaknesses of coordination as well as existing, "divisions, interagency bitterness, resentment and rivalry" within the law enforcement agencies - as correctly observed by both Fivaz and Njenje. The creation of a single, seamless and strong crime fighting unit will also help to rid the unit of other malpractices that has tainted its character over the years.
The federation will continue to monitor the work of the SAPS and will speak out strongly against any abuse of human rights by its officers, as is still happening in the way the police have been violently over-reacting to recent trade unions protests. We shall also condemn any move to bring the Scorpions' bad habits, and political bias into the ranks of the SAPS.
COSATU, the ANC and its government are committed to fighting all forms of crime. No revolutionary democratic project will be possible in any country without a significant reduction of crime and corruption, and maintenance of safety and security of all the people. Crime, in all its manifestations, contributes to perpetuation of poverty and poses an enormous threat to our national democratic revolution. We cannot allow criminality and lawlessness to undermine our hard-won freedoms and hinder the progress of our nation.
Never again must we let our institutions of the criminal justice system to be used for purposes other than what they were set up for. Specifically in relation to Special Browse Mole Report, we are calling on Parliament to prioritise its commitment to initiate the processes to further investigate those who responsible and ensure that this matter is finally resolved satisfactorily.
2. CONSTITUTIONAL CONSIDERATIONS
Since there is an application currently before the Constitutional Court intended to prevent Parliament enacting these two Bills, it would be important to comment on the constitutional questions arising from this process.
We note that the 2000 National Prosecuting Amendment Act, in providing for the DSO, stated the following in its preamble:
"...AND WHEREAS the Constitution does not provide that the prevention,
combating or investigation of crime is the exclusive function of any single
institution;
AND WHEREAS the Constitution does not prohibit Parliament from amplifying
the powers and functions of the prosecuting authority in national legislation..." (Emphasis added)
Interestingly this reflects that the very basis for establishing the DSO emanated virtually from a negative mandate, namely the omission of the Constitution to explicitly prohibit developing an investigative role or capacity within the prosecuting authority appears to have been interpreted as its endorsement. It appears for the same reason the Khampepe Report[1] saw no problem with this approach constitutionally.
Yet serious concern must be levelled against the fact the that SAPS with an explicit constitutional mandate, "to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law", has remained chronically under-funded and under-capacitated, a fact that has gained general sympathy from all quarters. Would it not have been more appropriate to implement the Constitution's explicit requirements rather than infer a mandate from its silence?
The reasons advanced by Khampepe et al for retaining the DSO broadly include addressing the following needs:
Specialised capacity especially to target organised crime through an entity that would be able to "attract, recruit and retain highly-skilled personnel".
Lack of capacity within SAPS to investigate high level priority crimes resulting in low conviction rates
Links between police corruption and organised crime
"Multi-disciplinary approach" to fight against organised crime and corruption including "police corruption
Perceived illegitimacy of the SAPS arising from historical and political reasons
The need to develop specialised capacity to target organised crime as well as other high priority crimes is strongly supported. However, no party has been able to advance logical reasons as to why this should not or could not have been developed within the SAPS in the first place. Further the mechanism for attracting specialised skills to the DSO has been made possible through the provision of considerably better salary and remuneration conditions than those applicable to public servants subject to the Public Service Act (PSA), as well as enabling the engagement of consultants also probably at higher costs.[2]
Whereas over-worked SAPS members who are subject to unsatisfactory remuneration packages applicable to general public service despite working under strenuous and dangerous conditions, are forced to contend with the labels of lacking specialisation and capacity, as well as demoralising and sweeping statements from political parties that they are corrupt and lack commitment to their jobs. This scenario illustrates the contradiction in priorities as far as the criminal justice system is concerned. The simple and obvious truth is that expectations in respect of capacity should not exceed the limited emphasis placed on the investment in that capacity, as has been the case with SAPS.
According to the National Prosecuting Authority (NPA) Annual Report (2003/2004) approximately R120 million was spent on consultancy functions, of which R1.2 million was paid to KPMG for the 500 pages of testimony that it presented on behalf of the DSO. These amounts contrast sharply with the dismal R8, 374 482 allocated to the Commercial Crime Unit of SAPS in the same year.
Further it should be noted that with the ever-increasing number of cases reported at police stations, a single SAPS detective may be expected to handle in excess of one hundred dockets. Whereas in the case of the DSO, who additionally are also fortunate enough to cherry pick their cases, two investigators normally manage a single docket for a longer period of time. This illustrates the distorted picture that has become inherent when viewing the DSO's reported successes outside of the correct context and in the absence of the relevant facts.
We support the emphasis on a multidisciplinary approach to addressing organised crime. Again, however, insufficient reasons have been advanced for why this could have been co-ordinated either through SAPS or the Minister responsible for Safety and Security.
Police corruption is a serious problem that admittedly must be addressed. Although why the DSO would be expected to be virtually inherently immune to corruption is unclear. In fact to the contrary there have already been several prosecutions instituted against senior officials and investigators for various offences including soliciting bribes, tendering violations and fraudulent abuse of funds intended for informants and whistleblowers.
Having said that we would support meaningful measures to address police corruption and accordingly strongly call for the expansion of the role and capacity of the Independent Complaints Directorate (ICD). Here again we note that the recent reports point to serious under funding and capacity constraints that are undermining the ability of the ICD to monitor and hold SAPS members accountable to their constitutional mandate.[3]
The issue of lack of legitimacy based on historical and political grounds, as raised by Khampepe, is odd considering that our courts and the prosecutorial system have likewise been subject to the same lack of legitimacy on account of the role that they played under apartheid. The fact that this has been reversed in so far as the DSO is concerned on the basis of a higher successful conviction rate is testament to its proportionately better access to resources, and was achieved at the expense of falling public confidence in the police as well as generally low morale within SAPS.
4. SPECIFIC COMMENTS ON THE BILLS
Notwithstanding our overall support for both the Bills, we do have certain concerns in respect of which we will be calling for specific amendments as explained below, more particularly in respect of the SAPSA Bill.
4.1 The National Prosecuting Authority Amendment Bill
The formal legislative provision for the DSO was effected through the 2000 amendment to the National Prosecuting Authority Act of 1998. Therefore, as a consequence of relocating the institution, the NPAA Bill focuses primarily on deleting the amendments of 2000, including definitions and provisions relevant to the establishment of the DSO. In most cases these provisions have been migrated to the SAPS Act, some in an amended format. Accordingly we have focused our substantive comments on that process, wish to generally indicate our support for all amendments to this Act as proposed under this Bill.
Further as a technical note, we wish to bring to the attention of the Committees that the Bill omits to delete the following words found under the current section 36(5):
"or in respect of a matter dealt with by the Directorate of Special Operations, the Chief Executive Officer,".
4.2 The South African Police Services Amendment Bill
4.2.1. Dissolution vs. Relocation
The main emphasis of this Bill is to incorporate the current provisions of the DSO into a new proposed special unit in SAPS, called the Directorate for Priority Crime Investigation (DPCI) under new sections 16A and 16B that are to be inserted into the Bill.
Before responding to the substantive details of the provisions, it is necessary to first comment on the principle of the relocation of the DSO to the SAPS (as opposed to its dissolution). We note that the DPCI, as with the DSO, will focus primarily on organised crime. This is notwithstanding the fact that in terms of the current SAPS Act there is already an existing organised crime unit comprising SAPS members as established under section 16. Further subsection 16(2) provides detailed provisions as to the various types of organised crime that are possible.
The effect of the establishment of the DPCI therefore is to create two parallel units within SAPS that are BOTH dealing with organised crime. Further it retains and entrenches the inequality inherent in the existing setup, with the DSO (soon to be DPCI) enjoying greater access to resources, including higher remuneration. This is problematic as we believe that it would have been more appropriate to have to have expanded the capacity of the existing SAPS organised crime unit and to have transferred current DSO personnel to the existing SAPS unit as opposed to creating the DPCI. It is illogical to have two units within SAPS working in competition with each other to meet the exact same objectives.
Accordingly we cannot support the creation of the DPCI and call for the incorporation of this structure directly into the existing SAPS unit, whilst addressing the structural issues especially in respect of remuneration and resources.
4.2.2. Screening of DPCI Members
We note and support that the sub clause 16A(5) - (12) requires and regulates the security screening of DPCI members, which we support noting concerns that the DSO committed serious security violations with many of its special investigators by failing to subject them to the necessary security screening.
Accordingly we are seriously concerned that sub clause 16A(13) relaxes these requirements by providing that the National Commissioner may provisionally allow appointments of officials to DPCI before the implementation of such screening provided that the "eventual" security screening is successful.
Whilst we do appreciate the logistical problems associated with this exercise we insist that NO person should be employed in any position of seniority within such as structure without the requisite security screening. To do so would compromise the interests of national security.
4.2.3. Remuneration of Members of the DPCI
Sub clause 16A(14) provides that the remuneration, allowances and other service benefits of DPCI members shall be determined by the Minister in consultation with the National Commissioner and the Minister of Finance. This indicates that the remuneration conditions of DPCI members will be higher than that of ordinary SAPS members. As indicated earlier this would entrench the existing inequalities between the two units, noting the inability of SAPS to attract and retain specific skills in order to increase its general capacity within the public service remuneration framework.
COSATU has already made detailed submissions in legislative processes dealing with public service employment conditions, and have consistently opposed initiatives directed at fragmenting the public service as the Bill sets out to do as in respect of SAPS. Accordingly we cannot support these provisions.
Where provision is made for the transfer of existing DSO officials who are already employed, it is understandable that their conditions of service should not be downgraded in the process of relocation. However, all future appointments to the SAPS should be on the basis of the application of uniform employment conditions across the service, which we are of the view needs to be reviewed and improved within the overall public service framework to ensure that employment conditions and remuneration adequately reflect the value of the work performed in SAPS.
4.2.4. Initiation of Investigations by the DPCI
The SAPSA Bill appears to provide for two mechanisms through which the DPCI investigations will be initiated. The first is provided for under subsection 16A(15) which states that the DPCI "must" investigate organised crimes listed under section 16(2) if this is assigned by the National Commissioner. In respect of the mechanism, clause 16B the head of the DPCI may at his/her initiative conduct either an investigation or preparatory investigation into organised crimes as identified under subsection 16(2).
Under the circumstances, it is unclear what will inform the decision of the National Commissioner as to, which organised crime cases should be allocated to the DPCI as opposed to the existing SAPS organised crime unit. Further the potential for conflict is even more likely in instances where the DPCI enjoys the discretion to initiate investigations under 16B. It is unclear how it is intended that differences be resolved between the two units, which essentially share a joint mandate. As indicated earlier we believe that the scope, role and capacity of the existing SAPS organised crime unit should be expanded, as opposed to creating a parallel unit.
4.2.5. Additional Comments
THE ROLE OF THE ICD
While we are aware that the main focus of the Bills is to address the relocation of the DSO to SAPS, we believe that this process creates an important opportunity to address weaknesses in the legislation undermining the role that the ICD can play. Much of the criticism levelled at the moves to dissolve the DSO is based on the view that it is needed to address police corruption. However, we believe that this is misplaced as this should be the role of the ICD, which should be expanded and provided with the necessary capacity to monitor ALL levels of police corruption with it being accountable directly to Parliament.
[1] See Khampepe Commission of Inquiry into the Mandate and Location of the Directorate of Special Operations ("The Dso"), 3 February 2006.
[2] See sections 19C and 38 respective of the National Prosecuting Authority Act of 1998.
[3] See J Burgher and C Adonis A Watchdog without Teeth: The Independent Complaints Directorate, June 2008.
This is the text of the submission, delivered by COSATU General Secretary, Zwelinzima Vavi, to the committee hearings on the draft legislation to disband the Directorate of Special Operations, Parliament, Cape Town, August 7 2008
