The disbanding of the Scorpions proves that government would rather have the threat of corruption than have a stand-alone unit which fights corruption, writes Khaya Dlanga.
Cape Town - The Scorpions came into operation in January 2001. By January 2009, they were disbanded. Many believed it had a lot to do with the pursuit of the then deputy president of the ANC and the country, Jacob Zuma.
The Scorpions were relentless. And they had powerful enemies. Their mandate was to deal with high-level crimes of national impact. This meant a lot of powerful people got into trouble and were caught by the country’s most effective crime-fighting operation.
Many felt targeted and felt the Scorpions were used to settle political scores. By the time it was disbanded, the outfit had a 90 percent conviction rate.
No wonder so many powerful people wanted the Scorpions gone. The outfit was squashed quickly when Kgalema Motlanthe became president after Thabo Mbeki was recalled. It was a smart move to make Motlanthe do it because if Zuma had done it when he became president, it would have looked like payback.
The new administration set up a unit to replace the Scorpions, the Hawks, which were under the police. Unfortunately, the Constitutional Court had another view.
In March 2011, Deputy Chief Justice Dikgang Moseneke delivered the majority judgment which had been prepared with Justice Edwin Cameron. The court ruled that “the Directorate for Priority Crime Investigation (the Hawks) is insufficiently insulated from political interference”.
The judgment did not disband the Hawks or reinstate the Scorpions as some may have hoped, but gave Parliament another opportunity to create a “constitutionally valid” crime-fighting and corruption-busting unit.
President Zuma is now arguing that if the Hawks were an independent unit outside the police force, there would be no accountability.
In the Hawks judgment, the justices argued the case for the principle of separation of powers and wrote: “Its inception in our constitutional jurisprudence can be traced back to Constitutional Principle VI, which is one of the principles which governed the drafting of our Constitution. It proclaimed that: (t)here shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.”
The Scorpions operated under constitutionally valid conditions and performed their duties just fine back then, until they were deemed to be too efficient.
The Hawks as they stand today are a unit in the SAPS that reports to the Ministry of Safety and Security; this means they are in effect directed by the executive. It would be easy for the executive to shield itself if it were involved in shady dealings if the same unit that might investigate it reports to it.
In paragraph 35 of the ruling of the unconstitutionality of the Hawks, the judgment reads: “The principle of checks and balances focuses on the desirability that the constitutional order, as a totality, prevent the branches of government from usurping power from one another.”
If the Hawks report to the minister, a member of the executive, it is easy to see how the powers of the Hawks could be directed by the executive. The Scorpions on the other hand were a unit of the National Prosecuting Authority and were independent of the executive as a result.
The paragraph submitted by the president: “However serious the threat of corruption and however dire the need for an independent DPCI (Directorate for Priority Crime Investigation) to avoid government shielding itself against policing of corrupt members, the Hawks cannot be an absolutely independent stand-alone unit,” tells us they would rather have the threat of corruption than have a stand-alone unit which fights corruption.