As explained in Part 1, it was decided to draw on the major strengths and avoid the problems of the Scorpions in creating a new Organised Crime Unit (OCU).

This is what we tried to do in Parliament, but in all the howling, noise and bluster on all sides, and the hostility of some people to even consider a review of the Scorpions, this got lost.

Former president Jacob Zuma. (Photo: Gallo Images / Rapport / Elizabeth Sejake)

We certainly didn’t plunge headlong into “shuttering” the Scorpions. Nor did we scramble to outdo each other to catch former president Jacob Zuma’s eye, with frantic ambitions to Cabinet and other key posts. Actually, several members of these study groups didn’t necessarily support him at the Polokwane conference.

And we had extensive public hearings in all the provinces. We spent about 290 hours in formal meetings of the committees, sub-committees and informal exchanges with key stakeholders to develop an effective substitute for the Scorpions. While the 2007 ANC National Conference resolved to disband the Scorpions, there were no guidelines on the unit that would replace it.

Some saw the hearings as a farce, but they were not about whether the Scorpions should be disbanded, though people were free to say that. In a media statement we said: “In short, both those supporting and opposing the disbanding of the Scorpions have a vested interest in the public hearings – and the latter have even more of an interest in shaping any new organised crime unit that might emerge. So we urge everybody to participate.”

We didn’t expect erudite, legally and technically sound responses from ordinary people ravaged by poor education, crime, unemployment and other hardships. That came at the public hearings in Parliament. But people also had to be heard on the ground. It’s their Parliament and country too – and they’re the majority. Why must we hear only the elites who can fly to Cape Town and MPs who often claim to speak for these people? While some people opposed the disbanding of the Scorpions, for the vast majority it wasn’t an issue. They wanted an end to crime and corruption and didn’t care by who, what structure and how.

But that was predictable, those opposed to the disbanding of the Scorpions argued. Well then, at the very least, they should have learnt from the hearings that their claims that the majority of South Africans were opposed to the Scorpions’ disbanding rang hollow, and they shouldn’t have breezily claimed to speak for the majority, instead of for themselves and those they did represent. But they chose to join the outrage industry and assume a “feel good, holier-than-thou, see – we care more about the poor than the ANC” attitude.

Since there were no broad guidelines on what should replace the Scorpions this, inevitably, became a site of contestation within the ANC. If it was mainly a contest between those identifying with either former presidents Zuma or Mbeki, it was more complicated than that. There were “Zuma-ites” who wanted a strong unit to replace the Scorpions and “Mbeki-ites” who wanted the Scorpions to go at any cost, and there were others with different positions in a continuum in between. And these differences were also echoed within Cosatu and the SACP.

Different ANC NEC and Alliance members lobbied different members of the study groups. Civil society organisations joined the fray, not just through the committee meetings but also by lobbying individuals in the study groups. Understandably too, the Justice Study Group, with more lawyers in it, and the Safety and Security Study Group had a different emphasis in their approaches to the bills based on the same conference resolution. The final decisions were the outcome of these contestations and the balance of forces within the movement and between the movement and civil society.

Interestingly, a few opposition MPs decided it would be better to ensure that the new unit would be strong than fighting for the Scorpions’ retention and informally usefully helped to shape the outcomes.

We also considered the views of the Khampepe Commission that reviewed the mandate and location of the Scorpions in 2006. We drew in two representatives each of the NPA and SAPS, and two technical advisers from civil society organisations to assist us in the processing of the bills. But they didn’t have a role beyond technical advice and they were not involved in the political horse-trading over the final model.

In these circumstances, how could I – or any committee chair – “lead the campaign” to “shutter” the Scorpions, as Stephen Grootes says?

Despite the polarisation in the committees, all the political parties agreed on what the broad framework of an effective organised crime-fighting unit (OCU) should be. As mentioned in our report to Parliament, the features we broadly agreed on included:

• A multidisciplinary approach: for a variety of reasons, including the complex and sophisticated nature of organised crime, there was clearly a need for a multidisciplinary approach. The OCU should include participants from the SAPS, NPA, SARS, Home Affairs, FIC and the intelligence agencies. The differences were over in what form and structure this should happen;
• Role of prosecutors: the prosecutor should be involved with investigators from the outset of an investigation. The differences were over how this should happen and the extent and form of its institutionalisation in legislation;
• Need for crime intelligence: crime intelligence is crucial to pursuing organised crime cases. Crime intelligence should not be conflated with broader intelligence not directly related to crime. The differences were over whether this intelligence capacity should be granted to the OCU or whether it should be empowered to get the intelligence from other intelligence agencies;
• Definition of organised crime: there was a need to both define organised crime more specifically and provide a measure of flexibility for the Head of the OCU and minister to add to the mandate through regulations or policy frameworks to be approved by Parliament. The OCU should deal with serious organised crimes, serious economic crimes, serious cases of corruption, and high priority crime;
• Powers and functions: besides cases referred to the OCU by other agencies, the head should be able to initiate cases within a policy framework determined by the minister and the OCU and approved by Parliament. The powers and functions of the OCU have to be spelt out very clearly;
• Minister appoints head: the minister should appoint the OCU head, with Parliament playing an appropriate role;
• Vetting of employees: employees of the OCU should be vetted. Corruption within the OCU must be tackled effectively;
• Need for executive monitoring structures: there had to be an inter-ministerial committee and inter-departmental committee that monitored the OCU and supported it to play its role;
• No political interference: the OCU should be free from political interference;
• Need for complaints mechanism: there needed to be a structure to deal with complaints from the public and any other source about the behaviour of the OCU or individuals working for it as a safeguard against any political bias;
• Need for effective parliamentary oversight: there was a vital need to ensure effective parliamentary oversight of the OCU, included through considering an annual OCU report and the OCU reporting to the committee at least three other times a year;
• Adequate budget and resources: the OCU must be allocated the necessary budget and other resources; and
• Two-phased approach: there should be a two-phased approach to developing an effective OCU model. The model should serve as a “building-block” for possible further improvements and should be reviewed in three years to see how it was working. This would be necessary also to consider how the OCU fits into the new integrated criminal justice system that was being shaped.

We looked at five models that could give effect to these principles but could not agree on which should be adopted. All the parties agreed that the model for the OCU in the Cabinet bill was too weak and we rejected that.

The DA, FF+ and ACDP supported a reformed Scorpions model. The IFP supported either of two other models: a new OCU not located within the SAPS but as a separate structure answerable directly to the minister of safety and security or a new OCU answerable to a Department of Priority Crime Investigations, with its own budget and minister.

The ANC considered all the options on the table and decided on an OCU that included some features of the Scorpions but also introduced several new features to deal with the problems with it mentioned above. We could not implement all the principles fully set out above, but we certainly didn’t provide for a weak, limp, pliable new OCU.

We made many changes to the Cabinet bills, taking into account the public submissions. We ensured, for example, that:

• The new unit would have greater independence from the SAPS;
• The head of the unit would not be a divisional commissioner, but a national deputy commissioner, appointed by the minister subject to Cabinet approval;
• Much greater recognition was given to the complex and specialised nature of organised crime and the need therefore for a unit that could tackle that effectively. There was a clearer definition of national priority offences, including organised crime;
• The multidisciplinary approach and integrated methodology of the new unit was emphasised. The national director of public prosecutions has to ensure that a dedicated component of prosecutors is available to assist the new OCU in conducting its investigations;
• Provision was made for effective Cabinet and inter-departmental coordination;
• Parliamentary oversight of the OCU was strengthened;
• Security screening and integrity measures applicable to employees were strengthened;
• An independent complaints mechanism was created;
• The transitional mechanisms of moving staff from the Scorpions to the new OCU were strengthened; and
• The new model would be reviewed within three years.

While prosecutors and investigators are not in the same unit, there is nothing precluding them from working together from the outset of an investigation, and the ministerial and interdepartmental committees are meant to assist with this. The Department of Home Affairs, SARS, Financial Intelligence Centre and other public bodies would have to second staff to the Hawks as requested. Instead of a “prosecution-led” investigation approach of the Scorpions we suggested a “prosecution-guided” approach. In our report we stressed that SAPS legal officers should also advise investigators on cases to ensure that they are legally tenable in court. All investigations underway then had to be continued by the new OCU.

The Chief State Law Adviser’s Office confirmed that the bills were sound and didn’t violate any international conventions.

Hansard has me saying in the Scorpions bills debate: “The vast majority of us in the ANC are not triumphalist. We are not gloating about the dissolution of the Scorpions. This is in fact a sad occasion, for what was meant to be an elite, efficient and powerful organised crime-fighting unit – the pride of the nation – has become a source of division in the nation. We will forever disagree on who is responsible for what in this saga and how we have come to this. But we have, and we cannot continue like this… Let us be clear. None of us in the ANC says the new organised crime-fighting model is perfect. But enough of us say this unit is workable. Give it a chance. Let it develop. This is work in progress…”

So the bills we passed were fine. They could have been better. But it was what we could get in the challenging circumstances. We had to, as you almost always have to, find compromises on a bill not only to meet the interests of civil society and the opposition parties, but also the different competing interests within our broad movement. One of the issues was how should the Hawks relate to the minister of safety and security, without sacrificing its independence and ensuring its insulation from political interference. Some within the ANC wanted the Hawks to be more, and others less, subject to the ministerial broad policy guidelines, though all agreed it had to be independent.

But the position we finally settled with was found by the court to be unconstitutional. I was not in the relevant committees at the time the court made this decision, but my understanding is that the court decided that the unit was not adequately independent of the minister and that the role of the ministerial committee, which was mainly to provide for cooperation of the different organised crime-fighting agencies, undermined the independence of the unit. There was, in fact, such a ministerial committee broadly overseeing the Scorpions, though it hardly functioned.

The committee also provided greater security of tenure and remuneration for the Hawks head and other senior officials with a non-renewable fixed-term appointment of up to seven years.

The court certainly didn’t find the model as a whole unconstitutional. And it’s not as if its decision that the Hawks needed to be more independent of the minister was surprising. There was considerable discussion on this issue in the committees’ meetings. We should have done what the court referred to in the legislation in the first place. These amendments certainly served to strengthen the Hawks legislatively.

Hawks suffer same fate as other state institutions

However, the Hawks turned out to be limp and tame and became highly politicised. But this certainly didn’t flow inherently from the legislation. The dismal fate of the Hawks, until recently, has been the outcome of the wider process of the deep decay of the state, our movement and, to some extent, our broader society. It was not an inevitable outcome of the disbanding of the Scorpions.

Of course, there were allegations of corruption in 2008, but who could have predicted the speed and sweep of the rampant corruption that followed? Not even the perpetrators! And who could have foreseen the speed and extent of the hollowing out of state institutions, not just the Hawks? Or that we would have such brazen State Capture? Or that we would have to end up with a Zondo Commission?

We didn’t anticipate that the provisions of the Hawks legislation would not be properly implemented or some highly compromised people would be appointed to lead it or that it too would become such a site of contestation within the ANC. That we would be back to the same Scorpions’ issues!

The legislation referred to a two-phased approach to developing an effective OCU. The minister of safety and security had to report to Parliament within three years on the Hawks’ performance and the need for any legislative amendments to improve its functioning. But this didn’t take place effectively. The Hawks model also had to be reviewed as part of the impending overhaul of the SAPS Act as a whole and the creation of a single police force across all three spheres. In our report to Parliament, the committee urged the ministry to bring a new version of the SAPS Act to Parliament within 12 months after the 2009 elections. But this didn’t happen either.

What considerably complicated the process after the 2009 elections was that there was a substantial change in the membership of all three parliamentary committees and, understandably, the new members had no experience of processing the Hawks legislation and an inadequate understanding of the complex political issues that had to be negotiated to get to the legislation.

Very importantly, the Hawks had to be part of the new integrated criminal justice system that was being developed at the time. We could not have foreseen that this project would barely get off the ground 12 years later.

In our report to Parliament, we recommended that there should be an effective oversight programme developed within three months of the new parliamentary term, but this didn’t happen.

Although we tried to address the Scorpions’ staff’s concerns, including through meeting them in Tshwane, we did not foresee such a big loss of skills and experience by people refusing to move from the NPA to the new unit. We should have done more to prevent this instead of engaging with their representatives so much in the technical advisory committee.

Former national director of public prosecutions Vusi Pikoli and former Scorpions boss Leonard McCarthy. (Photo: Gallo Images / Media24 / Felix Dlangamandla)

Much is made about how good the Scorpions were. Yes, they were. But the unit became politicised and was being used to settle political scores. Why is it that the Hawks are rightly condemned for becoming politicised but the Scorpions are not? Why is one politicised organised crime-fighting unit acceptable and another not? And why are there calls for those who abused the Hawks to face trial but not those who abused the Scorpions? Why the deafening silence on the Scorpions head, Leonard McCarthy, for example, who was allowed to drift away to Washington? Why no calls for him to face trial?

And isn’t it naïve to believe that the Scorpions would have been spared the fate of the Hawks, NPA, SARS, SOEs, and other public entities after 2009? Would McCarthy not have been swept away too?

Some say if only the Scorpions were not disbanded we would not have had this rampant corruption. But you can’t clutch romantically at the Scorpions like that. They would certainly have been victims of State Capture just as the Hawks were. People cannot know what would have happened to the Scorpions after 2009 any more than we could have foreseen what would happen to the Hawks.

The issue isn’t so much, should the Scorpions have been dissolved? but, why did the Hawks fail?

Although we knew the state was weak then, we didn’t realise how easy it would be to debilitate parts of it. And how the configuration of Alliance forces that succeeded in Polokwane, as multifarious as that was, would fall apart so quickly, and even its more progressive forces would be unable to wage struggles to prevent that. And while civil society protested, and came to life at times, overall it too was too weak to reduce the extent of the hollowing out of the criminal justice system and other parts of the state.

There is the “told-you-so” brigade who say that what happened after the Scorpions were disbanded was inevitable and foreseeable. Of course, politicians are duty-bound to take decisions based on a reasonable assessment of the period ahead and the likely outcomes of these decisions, but we are not political sangomas or soothsayers. There are certainly some things we should have foreseen, but most, we couldn’t have. Can it really be believed that we could have foreseen that what would follow would necessitate the Mpati, Nugent, Zondo and other commissions?

Of course, we need a multi-agency unit which brings together a range of relevant skills to tackle organised crime effectively. And with the escalation of corruption, more than ever! But we certainly don’t need another politicised Scorpions or Hawks. We need, rather, a very strong, properly capacitated, independent, well-resourced, multidisciplinary structure, which includes the widest range of crime-fighting skills. How they should come together and in what form and structure, needs to be decided not just by government and Parliament, but also the widest range of civil society organisations and experts.

Dismissal and anger understandable 

This article is a response to Grootes’ article from the perspective of a single ANC MP and is not an official ANC response. And it certainly doesn’t claim to reflect the views of the Justice Committee as a whole or that of the opposition MPs in it in 2008. I may have got the odd legal issue wrong, but I don’t think that detracts from the basic thrust of the arguments here.

Of course, people are, rightly, extremely angry at the rampant corruption that has overwhelmed our country, especially with the latest horrific abuse of the PPE tenders, which the WHO’s head, Tedros Ghebreyesus, described as in effect being a crime of murder and Archbishop Thabo Makgoba says amounts to an act of genocide. This rage is very important for our society – it’ll help towards greater civil society action and puts us as public representatives under enormous pressure to act more decisively against corruption, including within our own ranks. And that’s already happening!

Of course, some of the people who bother to read this article will dismiss it entirely. Some might see it as an empty rationalisation or a just a big fat lie for an evil decision meant to save errant ANC leaders and plunge the country into corruption, and now that people are so angry with the ANC, we are worried about losing the next elections and are trying to win back ground by articles like this (as if an article like this could do that, given our polarisation). These reactions are perfectly understandable. In good measure, as the ANC we have brought these criticisms upon ourselves and we can’t complain about the cynicism of decent people towards us.

The aim of this article is not to try to win the readers over, but to offer an explanation from a single ANC MP in the hope that some readers will find at least part of what I say of some value. And as the country shapes new, far more effective structures to decisively and swiftly tackle corruption, we learn from the experiences of the Scorpions and the Hawks.

But whatever people think of the ANC decision on the Scorpions, we were where we were in 2008 and we are where we are now. We need to learn from the past, but the point of that is to move forward. Corruption is too big an issue for us to constantly get stuck in the Scorpions’ past.

And whatever our differences, we need each other like never before. If the Covid-19 onslaught has not taught us this, what will? We need to work far more cooperatively than we ever have. Without giving up our respective identities and roles, government, Parliament, the criminal justice system, civil society, individual members of the public – all of us – have to effectively cooperate to wage a massive campaign against corruption and the horrendous consequences of Covid-19.

Either we do – and move forward together as a country, or we fall irretrievably apart. This country has come too long a way, has far too much potential, and we owe far too much to the poor and disadvantaged to allow the latter to happen.

So, let’s move forward. DM

Yunus Carrim is a veteran activist, ANC MP since 1994 and SACP Central Committee and Politburo member.