Submissions by SADTU on disbandment on the Scorpions
It was created by political decision and now it must be disbanded by political decision.
The idea of an elite, specialised crime fighting unit in South Africa was born in 1999 and the political decision was taken to implement the idea. The Scorpions was established to fight organised crime, not to fight political enemies of the apartheid regime, and not to be used by politicians to fit their political battles.
Criminal investigators from the apartheid regime were drawn from the “best and brightest” private agencies and departments to form the Scorpions. It later transpired that those “best and brightest” investigators served under the apartheid regime and came into the Scorpions with the huge political baggages.
Instead of pursuing or implementing what the Scorpions were created for, that is the fight against organised crime, they pursued their own dream of bringing down “terrorists” (name used to describe those who were fighting against apartheid), hence the rigorous attempts to bring down,amongst other Jacob Zuma, Mark Maharaj, Ngwako Ramahlodi etc.
Scorpions’ failure became clear when it started to act independently from the SAPS with more resources than the SAPS, its investigators paid more than 40 % than that of the SAPS and Scorpions choosing cases with more prospects of success and having its own intelligence gathering which later resulted in it being used by political masters.
Today, the public is divided by the disbandment of this unit. The division of opinion is because the Scorpions actively used the public resources to publish in the print and the electronic media few of their successful cases. Today, we are faced with two public views other saying Scorpions must go and others saying it should stay because of its “success” in fighting organised crime.
It is our view that the Scorpions’ track record is exaggerated and it is debateable. The point is, since 1999 the Scorpions have done nothing to implement its mandate other than to divide by allowing itself to be used politically, hence we now have the divided ANC and organised criminals that are more powerful than before the Scorpions established. Criminals can now bargain with the prosecutions on equal footing instead of going straight to jail. They sell evidence for their freedom e.g. Glen Agliotti, Nassif e.t.c. Several factors listed below show that the “success” of the Scorpions is hugely exaggerated:
The Scorpions pick and choose which crimes they investigate, thus artificially increasing the probability of successful prosecutions. Were they to prosecute all cases falling within their mandate, their success rate would be roughly similar to that of the SAPS;
Organised crime, the primary mischief at which the Scorpions were aimed, is flourishing, despite the Scorpions’ “success rate”. When ruthless organised gangs are thwarted (e.g. the shoot-out in Jeppestown two years ago, and the shoot-outs in Carousel and Pretoria involving cash-in-transit heists), it was the SAPS that was involved, and some of their members laid down their lives for the security of our people. The Scorpions were nowhere to be found. It is estimated that the Scorpions investigate less than 5% of organised crimes. The rest is “white-collar” crime, with a bias towards public sector corruption. Human trafficking, drug empires and money-laundering are flourishing while the Scorpions pursue “prosecute at all costs” strategies against senior politicians.
The paralysing fear of violent crime in our communities is worse than it was in 1999, yet we are told that the Scorpions have been “hugely successful” in dealing with crime;
Plea-bargains are generally offered to “foot-soldiers” in order to secure the conviction of the masterminds. Yet the Scorpions offered true masterminds like Glen Agliotti plea bargains in order to target Commissioner Jackie Selebi. How this decision assists in dismantling the drug cartels is left unexplained.
Those who are against the disbandment of the Scorpions fail to highlight the failure of the Scorpions that:
They used the media when arresting people;
They used investigators who do not have security clearances to search private properties including the Union Building;
They used apartheid investigators or agents;
some of its “best and bright” investigators are charged criminally for corruption in that they have been working with criminals. For example, Advocate Conwell Chavunga, Ms Kgantsi, the list is endless; and
They resort to unnecessary show of force when arresting unarmed politicians. Heavily armed agents, often over 20 in number, have been seen arresting politicians. Why this intimidatory show of force against people who have no connection whatsoever with organised crime?
The SAPS is the only agency that has been constitutionally mandated to deal with crime in South Africa. The idea of having structured the Scorpions in such a way that they position themselves apart from SAPS was a recipe for disaster.This made the scorpion to consider it separate and independent from constitutionally established law enforcement and intelligent agencies like SAPS, National Intelligence Agency and the South African National Defence Force. Where does the scorpion derive its power to establish its own intelligence gathering capacity? Its intelligent gathering is questionable and unconstitutional as it does not have such a constitutional mandate.
The scorpion assumed power from nowhere and sometimes the exercise of that power seems confusing. They have power to investigate criminal activities and after investigating they decide to prosecute. We submit that the investigation and decision to prosecute must be separated and cannot be exercised by one body. A decision to prosecute or not has serious implications and must be exercised with great care by a body which is independent from investigation, hence our view that from the phase of it the scorpions’ power to investigate and decide to prosecute is unconstitutional. The scorpion and the Directorate of Public Prosecution must act separately.
As the establishment of the scorpion was a political decision, no court can stop its dissolution. We do not see any compelling constitutional argument against the dissolution of the scorpion. Nor is the existence of the Scorpions a constitutional requirement. The constitutional court will and must never engage itself in confirming or reversing political decisions as it has held in case of Merafong Community that the constitutional court is a court of law and may not decide whether a political decision is right or wrong. The court will only have to determine whether there was public participation on the decision to dissolve the scorpions or not. Consulting the public or public participation, does not mean that the decision maker is bound to follow the views of the public but to consider them before a decision is made.
Judge Van der Merwe of the Transvaal Provincial Division, rightly held that the court has no jurisdiction to entertain the matter because it involves crucial and important political matters which the High Court has no jurisdiction. From what the court found, I cannot see how the Constitutional Court can have jurisdiction to entertain the matter. After all it is a political decision by the ruling party which must implemented by parliament by promulgating a law to dissolve the scorpion.
We admit that the Scorpions were established by a political decision to fight against organised crime but we must further admit that the establishment of the Scorpions was an experiment that failed to yield the required solution. Therefore as it was created by a political decision it must also be disbanded by a political decision.