As the government prepares to disband the Scorpions, four legal routes to stop the process have emerged in proposals by opposition parties and academics.
Government’s justice and security cluster met on Thursday in Cape Town to discuss the details of incorporating Scorpions investigators into the South African Police Service.
The move has been criticised by politicians, security and legal experts, and a trade union representing a large number of Scorpions, with the common thread that the ANC is attempting to protect its own by dissolving a law enforcement agency with a higher than 80% conviction rate.
The most popular argument for retaining the Scorpions, advanced by the Public Servants Association (PSA) and constitutional law experts professors Pierre de Vos and George Devenish, is that relocating them might be an infringement of section 23 of the Constitution, which guarantees the right to fair labour practice.
The PSA, which represents about 200 Scorpions, is seeking a meeting with the justice department to discuss the effect of the move on its members’ working conditions.
De Vos, in a column on the Mail & Guardian‘s Thought Leader, argues that moving the Scorpions to the SAPS ‘will almost certainly result in a downgrading of their posts as they would not have the same status and working conditions as they had in the Scorpionsâ€.
According to Devenish, the Scorpions themselves are best placed to challenge the decision. ‘Their being absorbed into the police cannot be done without unilaterally changing their conditions of employment in a manner which falls foul of the prohibition of unfair labour practices contained in the Bill of Rights,†Devenish wrote on Legalbrief this week.
This week the Democratic Alliance presented its case for retaining the Scorpions. The party sets its focus on public participation in the law amendment process enshrined in section 59 of the Constitution. ‘If an amendment is regarded as not having sufficiently met the requirements for public participation, it can be set aside by the Constitutional Court and Parliament will then have to reopen the proceedings.â€
United Democratic Movement leader Bantu Holomisa previously told the M&G his party might pursue the argument that dissolving the Scorpions would negatively affect the safety of South Africans. The Centre for Constitutional Rights’s Paul Hoffman said section 179(2) of the Constitution provides the NPA with the powers to institute criminal proceedings on behalf of the state. This would be impossible without an investigations arm such as the Scorpions.