ANC reasoning on Scorpions ‘flawed’

The ANC’s reason for disbanding the Scorpions — that there be a ‘single police service” in the country — was dismissed by the Constitutional Court six years ago.

And this ‘flawed” argument, which was also put forward by embattled police National Commissioner Jackie Selebi at the Khampepe Commission’s public hearings, was rejected by Judge Sisi Khampepe as ‘without merit” in her report on the future of the Scorpions.

The ANC 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.

Cabinet this week confirmed that the process of disbanding the Directorate of Special Operations (the Scorpions) has started. The ANC wants the Scorpions to be out of office by June this year.

The Mail & Guardian is in possession of Khampepe’s findings about the legislative mandate of the Directorate of Special Operations. In it she considers the submission by 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 v 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 rele­vant 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’.”

Khampepe recommended the Scorpions remain within the National Prosecuting Authority (NPA), but that the investigating arm of the unit should report politically to Nqakula.

Cabinet accepted her report in June 2006 and amendments to the NPA Act and other legislation were still being drafted when the ANC resolved that the Scorpions be shut down.

Practically this means that the Khampepe process has to be aborted, says constitutional law expert professor Pierre de Vos.

The ANC’s reasoning was little more than a ‘misunderstanding” of the Constitutional Court’s Potsane judgement, but this may not hamper the ANC’s intentions.

‘It doesn’t mean that abolishing the Scorpions would be constitutionally unacceptable. There is nothing in the Constitution that requires the existence of the Scorpions.” According to De Vos, the state might run into some legal problems about labour practices when moving investigators to the SAPS, but these are ‘complicated legal issues to be thrashed out — it is not impossible”.

Among other things, this seems to be a manifestation of the two centres of power — ‘government made one decision [for the existence of the Scorpions] and the party another. If the decision of the party, instead of government’s decision is followed, it would be a clear indication of who is calling the shots,” De Vos says.

There are about 500 investigators in the Scorpions, of which a substantial number were not previously in the SAPS. According to a senior Scorpions member, the morale in the unit is ‘extremely low”.

Of great concern is the issue of remuneration. It is a well-known fact that Scorpions investigators are better paid than their counterparts in the SAPS and the fear is that it will be impossible to integrate Scorpions members with the same bene­fit packages as before.

There are three ranks for Scorpions investigators: that of special investigator, senior special investigator (SSI) and chief investigator (CI). According to an NPA source, the remuneration of a SSI is equal to that of director in the police. CIs earn roughly the same as commissioners.

Only 148 police officers hold the rank of commissioner and there are 492 directors in the SAPS out of 163 000 employees. It seems highly unlikely that the Scorpions under the police will be ‘awarded” these honours.