The disbandment of the Scorpions is clearly intended to shield key African National Congress (ANC) members from effective investigation and prosecution, Helen Suzman Foundation director Raenette Taljaard said on Wednesday.
In terms of the motivation for the legislation to disband the Scorpions, there is a very clear umbilical cord between the legislative intent and the ANC’s Polokwane conference resolution, she said during public hearings on the draft legislation.
The hearings are being conducted by Parliament’s justice and safety and security committees.
Taljaard said the inescapable conclusion, from all circumstances, is that the government is simply giving effect to a dictate of the Polokwane conference and the ANC’s national executive committee, ”made with a view to shielding key ANC members from effective investigation and prosecution”.
The dubious rationale advanced by the ANC national policy conference, that the Scorpions’ existence could not be justified in light of the constitutional imperative for a single police service, has been conclusively dismissed by the Khampepe commission and the Constitutional Court itself, she said.
The foundation’s legal representative Peter Leon said there are fundamental infringements of the provisions of the Constitution brought about by the legislation.
The government’s conduct leading up to the introduction of the legislation constituted a serious breach of the rule of law — a foundational provision of the Constitution.
The legislation was initiated for an improper and ulterior purpose, it was introduced on the unlawful dictates of the ANC’s Polokwane conference, and there was a failure by the government to exercise the constitutional duties that rested on the national executive independently.
Further, the legislation was not rationally connected to its stated objectives, to a legitimate government purpose, and to the recommendations of the Khampepe commission, particularly a key recommendation that the Directorate of Special Operations (the Scorpions) be retained within the National Prosecuting Authority.
”The disbanding of the DSO would amount to serious and unjustified violations of the rule of law and the Constitution and breach the state’s constitutional obligations. The Bills suffer from incurable deficiencies and should not be approved by the committees,” Leon said.
The Bills would disestablish and not merely relocate a highly successful and widely acclaimed organised crime-fighting unit, he said.
”Most worrying, though, is [that] the Bills concentrate an enormous amount of power in the national commissioner of the South African Police Service,” Leon said.
This is not just an academic point. In terms of the draft legislation, the new directorate for priority crime investigation would have to investigate matters assigned to it by the national commissioner.
”Now members must ask and hopefully answer this question: How would Commissioner [Jackie] Selebi, now suspended … as a result of the activities of the DSO ever have been investigated, had this legislation been implemented?
”It seems to us that this legislation is seriously undermining equality before the law by making some people more equal than others,” he said. — Sapa