Sensitive information falling into the hands of Scorpions investigators may be abused to the detriment of the country, the Khampepe commission heard in Pretoria on Tuesday.
The National Director of Public Prosecutions, Vusi Pikoli, earlier testified that claims that his organisation was a threat to national security were incorrect, but upon cross-examination by George Bizos, he conceded that it is possible.
The commission, headed by Judge Sisi Khampepe, is conducting public hearings into the future of the Scorpions.
It currently falls under the National Prosecuting Authority (NPA), as the Directorate of Special Operations (DSO).
”Our clients are concerned that senior investigators who do invariably come into possession of sensitive information should apply for a clearance certificate like other information gatherers,” Bizos said.
Pikoli agreed and said it is, in fact, a duty and obligation that such a clearance certificate be obtained.
He said the screening of investigators has been a point of difference between the National Intelligence Agency (NIA) and the DSO, and that in the interests of national security, the two parties should find common ground between their different points of view.
Questions have been raised at the commission regarding the mandate of the DSO with regard to its function to gather, keep and analyse information, and its apparent intelligence function.
Pikoli agreed that the DSO is not an intelligence structure and only collects information through open sources.
When there is reason to go beyond that, the DSO has to make use of legislation regarding interception and monitoring of telephone calls.
”The law allows the DSO to gather, keep and analyse information. The same law authorises the DSO to institute criminal proceedings and the same law gives the DSO power to investigate. You need to read that as one and not isolate the three areas,” Pikoli told the commission.
He further said that the Scorpions should not be regarded as an intelligence structure, as this is not its function.
Bizos raised concerns that outside consultants employed by the Scorpions to assist in investigations may also come into contact with this sensitive information and suggested these consultants be cleared by the NIA.
He also said that these consultants might be members of a dangerous organisation, and the NIA should know about it.
”You cannot rule out the possibility,” said Pikoli, who submitted that he has discussed and reached an understanding on matters of screening consultants with NIA director general Billy Masetlha.
”We must put the horse before the cart,” said Bizos. ”The DSO knows who it intends employing and they should ask the NIA for clearance. What is wrong with that?”
Pikoli replied that he has made it abundantly clear that he is willing to work closely with the NIA on such matters.
The NIA is concerned about leaks to the media on pending investigations and feels parallel investigations might be jeopardised by premature publicity.
Khampepe asked Pikoli whether he is satisfied there are adequate systems to detect such leaks, should they occur.
”I am not currently satisfied that there are,” said Pikoli.
Apparent resentment
Bizos also raised the apparent resentment among other law-enforcement agencies of the Scorpion’s publicity-seeking and claiming corporate and individual success.
”None of us should gloat on the shortcomings and weaknesses of other law-enforcement agencies, but the question of publicity should not be shunned as long as it is not negative,” said Pikoli.
Regarding accusations of conflict and tension within the DSO, he said: ”I did not inherit a perfect organisation. But I inherited an effective organisation whose work speaks for itself.
”Like any other organisation, there will be problems, but it’s going overboard to say these problems make the institution dysfunctional.”
He denied allegations by Minister of Justice and Constitutional Development Brigitte Mabandla that the relationship between the Scorpions and police had ”irretrievably broken down”.
He later agreed that unhappiness and differences of opinion with other organisations might have sprung from the lack of guidelines.
Attempts to create guidelines in the past were not successful, he submitted.
Meeting on differences
On the back of these tentative agreements by the two organisations, commission Advocate Ismail Semenye questioned whether the South African Police Service, DSO and NIA chiefs would be able to convene a meeting to harmonise their differences.
Masetlha, from the NIA, took it upon himself to ensure such a meeting takes place within three weeks.
The joint standing committee on intelligence (JSCI) earlier told the commission that conducting intelligence without parliamentary oversight is prone to abuse.
Siyabonga Cwele, chairperson of the JSCI, said the parliamentary body limited its submission to the intelligence functions of the Scorpions and their coordination and cooperation with other intelligence structures.
Cwele told the South African Press Association the body did not take a position on the location of the DSO, but merely pointed out problems that need to be dealt with in terms of intelligence and cooperation.
”If the DSO is to continue to have internal intelligence capabilities and function as such, then the necessary legislation must be enacted to give effect to the constitutional provision,” said Cwele.
Support of this submission would establish the DSO as an intelligence service, bringing it under the oversight of the JSCI and inspector general for intelligence.
Submissions by the Scorpions would continue on Wednesday. — Sapa