”Feared by criminals, loved by peers,” runs the motto of the directorate of special operations of the National Prosecuting Authority (NPA) – the Scorpions – but it seems the institution engenders more hatred than love among its colleagues in the other arms of the government.
The report by Public Protector Lawrence Mushwana concerning the manner in which National Director of Public Prosecutions Bulelani Ngcuka conducted the investigation into Deputy President Jacob Zuma has again thrown into sharp relief questions about the constitutionality of the Scorpions, the accountability of the national director and the turf wars that have raged among the Scorpions, the police and the intelligence agencies.
Such conflict was built in from the start. The Scorpions were launched by President Thabo Mbeki in September 1999, before there was even proper legislation governing their activities.
”They were seen as Mbekis creation, who got more resources than other agencies and from the start they adopted a brilliant media campaign that earned them a high public profile and buy-in,” says Institute for Security Studies crime and justice programme director Anton du Plessis.
While this might not have been popular with the police, who accused the Scorpions of ”cherry-picking” cases and claiming an unfair share of the credit for anti-crime successes, Du Plessis argues such a strategy was necessary to restore both international and local confidence in the face of South Afric’s very high crime rate.
Such inter-agency disputes are common internationally, and were to an extent anticipated in the legislation governing the Scorpions. Section 31 of the National Prosecution Authority Act established a ministerial coordinating committee designed to determine who investigated what.
Chaired by the justice minister, it was supposed to produce policy guidelines and procedures to coordinate the activities of the Scorpions and other investigating agencies.
Under the former justice minister, Penuell Maduna, the committee never sat, providing an indication that even the Cabinet took it as read that Ngcuka would determine his own policy, despite Ngcuka himself supporting the establishment of the committee.
Following Mushwan’s report, which criticised the failure to convene the committee, Maduna’s successor, Brigitte Mabandla, has indicated she intends to remedy this omission.
While Du Plessis expects the committee to improve coordination between the different security agencies, he does not believe it will usher in a fundamental restructuring of the operation of the Scorpions, which is premised on the need for investigation of organised crime to be directed and informed by the prosecuting authority.
The committee may also act to relieve some of the intense political pressure faced by the NPA as a result of the Zuma investigation. Investigators have complained that the organisation has been wracked by internal and external suspicions that have stymied the sharing of intelligence and have slowed decision-making.
But, as Du Plessis points out, as a creature of the executive, the committee does little to remedy the concerns about accountability and the separation of powers that are inherent in the way in which the NPA and the Scorpions are currently structured.
”The ministerial committee is not an appropriate accountability structure. At the moment any decision to prosecute is reviewable in court, but not a decision to investigate or not to prosecute. There is a need for some kind of independent committee to act as a monitor of such decisions, similar to the National Crime Squad Service Authority in the United Kingdom.”
He points out that the fact that only the president can remove the director also opens him to political pressure and suggests legislation should be amended to transfer final responsibility for this decision to the Supreme Court of Appeal.
