21 April 2008

The recent shocking incident of naked racism in which a bunch of white students fed elderly black women food laced with urine at the Free State University in a protest against the institution\’s racial integration policy, reminded one of a retort by Helen Zille that there would be an “outcry” if a white Jewish child were to be enrolled at a “predominantly Muslim” school. Zille, at that time MEC for Education in the Western Cape, was reacting in objection to a recommendation by a Cape Town clinic that a Jewish pupil be placed at Harold Cressy High school, which she assumed, was Muslim.

This racist incident occasioned one\’s mind as one grappled with the real reasons behind the façade of the objection by the Democratic Alliance and its leader, Helen Zille, of the integration of the Directorate of Special Operations into the South African Police Service. Given Zille and her party\’s not-so-pleasant background on the issue of racism, vivid in the above analogy and what they actually stand for, it is critical that the question be asked. Is the defence of the Scorpions advanced because of the genuine and patriotic concern for the wellbeing of the country, or is it because its existence will continue to serve the interest of the rightwing opposition politics, given the unit\’s controversial and questionable operational methodology? This question is necessary for one to understand the DA\’s position on this matter, particularly in the context of the history of both the Scorpions and the party.

The answer to this question will assist one in understanding the resolutions of the 4000 delegates to the Limpopo conference of the ANC on the Scorpions. It will further provide clarity on whether the Secretary General Gwede Mantashe\’s assertion (made after his recent meeting with Zille on future of the Scorpions) that the hatred for the ANC was a common denominator that links the DA and the Scorpions was justified or not.

As alluded, the defining feature of Zille and her party\’s position on the matter of the Scorpions is found in the dark historical background that characterise the very foundation of the two institutions. While the DA\’s historical political metamorphosis that has for years negated social change is a matter belonging to the collective memory of this country, there is a tendency by some to ignore the Scorpion\’s background, which is central to the controversial and at most unsavoury manner in which they have handled cases against activists linked to the anti-apartheid struggle. As early as 2003, I was among those who have seriously questioned the role and the effects of the former apartheid era security agents within the Scorpions.

The unit as it stands to date represents a complete cycle of its historical evolution dating back to 1991 with the enactment of its precursor, the Office for Investigation of Serious Economic Offences (OSEO) through the Act of the parliament of the old order. The act sought to establish the office that will provide for a swift and proper investigation of serious economic offences. Given that participation in the economy was at that time an exclusive terrain of the white minority, it does make an interesting observation that the office successfully failed to bring even a single member of the white community to book for serious economic apartheid era crimes. The overwhelming evidence thus point to the fact that the office, whose act was enacted when the country was bracing itself for an imminent democratic order, was formed as subtle means to protect the interest of the white community from any form of future prosecution and investigation.

Given the era during which the Office was established, its staff composition was obviously made up of the white prosecutors and members of the then South African Police who were behind the prosecution and brutality directed at the political opponents of the apartheid regime. The racial integration into this Office was only to take effect almost eight years later, with the promulgation of the National Prosecuting Authority Act of 1998. The establishment of the NPA as a constitutional structure resulted in the absorption of the OSEO as one of its units, with its name also changing to that of Investigating Directorate: Serious Economic Offences (IDSEO). Due to the overlapping and duplication of functions in the operations of various units in the NPA, a decision was taken that they get merged with the IDSEO to form a single unit, called the Directorate of Special Operations. It was also decided that the unit must have its own dedicated investigators rather than relying on seconded police officials from the SAP. The result was that all the police officers from the former directorates were then absorbed into the DSO. This is where the problems began. The Scorpions (as it is popularly known), which was supposed to be the new unit, now had these agents of the old order as its permanent employees.

It is these officials, who have executed some of the most barbaric and racist attacks on behalf of the apartheid regime against the black people in general and anti-apartheid activist in particular, which still hold significant prosecutorial and investigative positions within the NPA and the Scorpions. And it is these former loyal servants of the old order, who have in pursuit of hateful vengeance and assault against those it considered enemies, failed over the years to operate within the constitutional mandate of the Scorpions, i.e. dealing with organised crime of complex and complicated nature that demands specialised skills and application of unique methodology. These are not the kind of ordinary crimes such as the investigations around the submission of fraudulent claims at the Road Accident Fund or the so-called 419 scams cases that have been the hallmark of Scorpions\’ investigations over the years – but the kind of challenging and complex cases that will take longer to investigate. It is for this reason that the output of the unit can never be compared to that of the police service or ordinary court prosecutions.

The fact of the matter is that if the Scorpions had involved itself in the legitimate work pertaining to its mandate, it is highly unlikely that it could have scored the high “success rate” it reported to parliament for its 2006/07 financial year. A simple audit points to the fact that the unit grossly misrepresented the figures and that about 90% of its cases were simple police matters that were falling outside of its mandate.

The correct mandate of the Scorpions was sacrificed on the altar of the advancement of narrow political agenda by the former apartheid agents, evident in the operational style since its inception. Such includes carrying out Hollywood-style raids, conducting investigations and trial through the media, authoring browse mole report to destabilise state security, and entering into controversial plea agreements as stepping stone to collapse those it considers their historical political adversaries.

The many who are familiar with the role of the DA and its leader\’s stance on racism will not be astounded by this common hate the party shares with Scorpions on the democratic dispensation and the ANC, as correctly observed by the Secretary General of the ANC. Zille\’s fierce opposition to the dissolution of the unit should then be understood within the context of a fervent and nostalgic yearning for continued existence of apartheid special branch type of operation within the new democratic order, which brazenly disregards the constitutional mandate and operates as law unto itself. This has much to do with her and her party\’s character today as reincarnation of the country\’s dark past.

It is these racial stereotypes and apartheid nostalgia of Zille and her party that saw her embarking on a futile crusade to sow division between the ANC and its government; calling for the scrapping of the ANC programme for the national democratic transformation; calling for a vote of no confidence in our government; and appealing for meetings with both the President and the ANC Secretary General for mere photo opportunity and political posturing.

Unlike Zille and the DA, whose racist agenda will continue being served by the continued existence of the Scorpions, the ANC\’s decision on the incorporation of the Scorpions into the South African Police Services will strengthen the fight against crime by ensuring the integration of all policing functions under a single structure. This is consistent with Chapter 11 of the constitution that “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”.

The merger of the Scorpions and the SAPS\’s Organised Crime Unit to create a single seamless and strong crime busting unit, as alluded to by the Safety and Security Minister recently, will further afford us an opportunity to separate the investigative and prosecutorial functions that have created a fertile ground for abuse of power in the Scorpions. The two functions are kept separate in normal democracies in order to maintain a system of checks and balances with regard to prosecutorial decisions even before a matter can be taken to court. This system will nevertheless have readily available prosecutors at its disposal for the purpose of guiding the investigators with regard to issues of admissibility and sufficiency of evidence. In that manner little room would be left for loopholes that the defence might exploit during the trial.

The new organised crime unit must be free of the baggage of the past and must be properly screened and vetted. This fundamental task was overlooked in the formation of the Scorpions when the unit absorbed police officials who served in the apartheid era security services seconded to the previous units by the SAP.

Secondly, means must be devised to deploy experienced prosecutors into the SA Police Service. The task and function of the prosecutors should be investigative in nature and they must work hand-in-hand with investigators to guide them in complex investigations. In this way the main strength of the DSO model will be retained without fusing investigative and prosecutorial powers.

Thirdly, given that the Scorpions deviated from its mandate over the years, a system must be introduced to ensure that the new unit does not inherit baggage of old cases from the Scorpions that did not fall within its mandate. Cases not falling within the mandate must be distributed to the relevant police units to be dealt with.

Lastly, a thorough skills audit of the personnel that will be absorbed into the new unit must be done. If the new unit is to function effectively, attempts must be made to ensure it is actually staffed with skilled and experienced personnel. The so-called “specialised skills” in the Scorpions is a myth, given that the type of cases investigators work on are similar to those handled by the SAPS. If indeed such specialised skills existed, the unit would not have frequently outsourced complex cases to private forensic auditing firms and outside legal firms.

The continued existence of the crime fighting structure, which is infested by elements responsible for the old order\’s reign of terror on those of who challenged oppressive regime; which wantonly disregards its constitutional mandate and portrays law unto itself in its operations, might be good for the political agenda of Zille and her party. But it cannot be in the interest of the majority of the people of this country, who are recovering from the legacy of the many years of apartheid and colonialism.

Nathi Mthethwa
ANC Chief Whip