In the wake of the Scorpions

The Scorpions’ successful model of investigation will be destroyed by legislation tabled in Parliament this week which absorbs the unit’s investigators into the police.

The government previously indicated that the Scorpions’ model of prosecution-led investigations would be incorporated into the new ‘super” unit set up to tackle organised crime. However, the General Law Amendment Bill suggests otherwise.

The Directorate for Priority Crime Investigation (DPCI), which will incorporate the Scorpions’ investigators and the South African Police Service’s organised crime and commercial crime units, has no prosecutors or intelligence operatives.

The internationally recognised troika investigation model, where an investigator, prosecutor and analyst work together from the outset, set the Scorpions apart from their police counterparts. Experts see the model as the reason for the unit’s success.

It was, however, one of the aspects that irked the ANC most. In the Bill it has swept aside the pleas of civil society and opposition parties for the model to remain intact.

The Bill makes no provision for lawyers to be part of the DPCI and the unit will have to rely on the police’s crime intelligence units for confidential information.

The Bill also:

- makes provision for the extensive screening of DPCI members and gives the police national commissioner wide powers to remove members deemed a ‘security risk”;

- states that ‘joint audit teams” will assess the Scorpions’ investigations;

- closes the door on Scorpions who resign and later wish to join the police or do contract work for the National Prosecuting Authority without the written consent of the minister of safety and security; and

- retains the Scorpions’ controversial method of holding preparatory inquiries prior to or during investigations.

This week the government also hinted that a drastic change in the current plea bargain regime could be on the cards.

The Bill will now be processed by Parliament’s safety and security committee, which will hold public hearings on it.

During a security cluster briefing on Tuesday, Safety and Security Minister Charles Nqakula (pictured left) released a background document on the restructuring of the criminal justice system, including the establishment of the DPCI.

The document refers to the troika approach as a ‘useful instrument … underpinned” by close collaboration between prosecutors, investigators and intelligence officers or analysts.

‘It does not require, of course, that prosecutors be part of the investigation and then be the prosecutors when the cases go to court,” it reads. According to government, the ‘principle of separation of functions” enables prosecutors to maintain their independence in deciding whether to prosecute.

This is the same argument put forward by the ANC.

Although not part of the Bill, the background document mentions a ‘contingent of legal practitioners” to be located in the DPCI that will give ‘legal guidance” to investigations to ‘help craft dockets”. They will, however, not be prosecutors, but lawyers the SAPS plans to find who will only work on investigations.

Ironically, the Bill does not deal with vociferous ANC complaints to the effect that section 28 of the NPA Act is unconstitutional and open to abuse. The section allows the authority to hold an enquiry before or during an investigation.

It also introduces a battery of security screening measures to counter what the ANC claims is the infiltration of the Scorpions by apartheid security or foreign intelligence agents. Designed to be ongoing, these allow the police boss to withdraw security clearance ‘if he or she obtains information which, after evaluation by him or her, causes him or her to believe that the person in question could be a security risk” or undermine the DPCI’s efficiency.

Scorpions who resign before incorporation into the police and later try to return to the SAPS or provide services to the NPA will need written permission from the minister.

On the issue of plea bargains the background document echoes the charges against suspended NPA boss Vusi Pikoli. Government is considering excluding certain categories of crimes from plea bargains ‘to ensure that criminals do not escape the full censure of the law —”

‘It is not desirable that people who have committed murder or conspired to topple foreign governments would effectively negotiate immunity from the full wrath of the law,” the document reads.

The charges against Pikoli include negotiating plea bargains with Brett Kebble murder-accused Glenn Agliotti (in a drug-smuggling case) and the Equatorial Guinea mercenaries.