The existence of the Scorpions is ”as valid today as it was at conception”, says the Khampepe report released on Monday.
”Despite indications that crime levels are dropping, it is my considered view that organised crime still presents a threat that needs to be addressed through an effective comprehensive strategy,” states the report, released by the Director General in the Presidency, Frank Chikane, in Pretoria.
”The argument that the rationale no longer holds since the levels of crime are showing a decline is therefore devoid of merit.
”For this reason, it is my considered finding that the DSO [Directorate of Special Operations] still has a place in the government’s law enforcement plan … it is my recommendation that the rationale for the establishment of the DSO is as valid today as it was at conception.”
President Thabo Mbeki appointed the Khampepe Commission of Inquiry, headed by Judge Sisi Khampepe, in 2006 to investigate the mandate DSO but he never released the details of the commission’s findings to the public.
Cabinet last week approved the General Law Amendment Bill and the National Prosecuting Amendment Bill to pave the way for a new unit within the South African Police Service (SAPS) to replace the Scorpions.
But the Khampepe report recommends that the special investigating unit should continue existing under the authority of the National Prosecuting Authority.
”Having considered the totality of the evidence and the law relevant to the terms of reference, it is my considered view, for reasons that have already been comprehensively canvassed, that the DSO should continue to be located within the NPA,” the report reads.
However, political oversight and responsibility over the law enforcement component of the DSO should be transferred to the Minister of Safety and Security.
”I have considered the totality of the evidence and argument and am satisfied that the DSO should remain within the NPA but certainly with such adjustments as are recommended in the body of the report including the recommendation relating to the power of the President under section 97(b) of the Constitution to transfer political oversight and responsibility over the law enforcement component of the DSO to the Minister of Safety and Security.”
The report says it is ”inconceivable” that the legislature would see it fit to repeal the provisions of the NPA Act that related to the activities and location of the DSO.
The report adds that the SAPS and the DSO ”still do not appreciate the legal imperative for cooperation”.
The ”tensions that bedevil the relationship of the DSO and the SAPS are incompatible with the constitutional responsibilities of these institutions”, the document says.
”It is critical that these institutions answer positively to the constitutional mandate for cooperative governance required of all organs of state.”
Constitutional imperative
The Cabinet adopted two Bills last week paving the way for the end of the Scorpions.
The African National Congress has maintained that the reasoning behind the controversial resolution to dissolve the Scorpions was not the unit’s investigation of party president Jacob Zuma or any of the other politically sensitive cases brought before the courts, but the ”constitutional imperative” of a single police service.
Khampepe considered submissions by suspended police National Commissioner Jackie Selebi and Safety and Security Minister Charles Nqakula on section 199(1) of the Constitution that reads: ”The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.”
Selebi and Nqakula argued that the existence of the Scorpions, which fulfil certain policing functions, was unconstitutional. But Khampepe disagreed, arguing that there is ”nothing unconstitutional” in the Scorpions sharing a mandate with the South African Police Service (SAPS).
Her report quotes a 2002 judgement by the Constitutional Court in the case of the Minister of Defence vs Potsane. A fundamental consideration in the case was the meaning of the term ”single” in the Constitution.
A full Bench of judges concurred that ”single” does not intend to say ”exclusive” or ”only”, but ”means to denote the singular ‘one”’.
Using this judgement as a basis for her findings, Khampepe said: ”[T]he meaning of ‘single’ used in the releÂÂÂvant section conveys no more than the fact that various police forces that used to form part of the ‘independent’ homelands such as the Transkei, Bophuthatswana, Venda and Ciskei would be amalgamated into one single police force. The word ‘single’ does not therefore connote ‘exclusive’.” – Sapa, Staff reporter