Disbanding the Scorpions was not a matter of loyalty over conscience (Part One)
ANC and SACP veteran and former Communications Minister Yunus Carrim unpacks the background to the disbanding of the Scorpions and the role he played as chairperson of Parliament’s Justice Committee in the disbandment. This is Part One of a two-part series.
Stephen Grootes, a thoughtful, reasonably balanced, insightful journalist, some months ago wrote glibly and sweepingly:
“Yunus Carrim, another member of the SACP, who is seen as an honourable man, still led the campaign to shutter the Scorpions.”
This, in an article titled “Soulless bargains: When blind loyalty trumps conscience.” (Daily Maverick, 28 November 2019). So I’m one of those soulless, blindly loyal lot. And even more, I’m compared to Trump’s goons, as are other ANC comrades!
I told Mr Grootes why I felt he was being very unfair and he gave me the sort of careful, balanced reply often reflected in his analysis pieces, saying that he should have been more nuanced and graciously offered to qualify what he said in a note in Daily Maverick. Not just as an activist, but as a former journalist, former academic and a Marxist significantly influenced by Gramsci (even with my SACP identity), committed to a free flow of ideas and views (within the usual constitutional limits), I didn’t feel there was a need for that.
What I wanted was for him to get a sense of how complex the issues were that we had to confront in dealing with the Scorpions in Parliament in 2008. He suggested I reply to his article in Daily Maverick.
With the president announcing a multi-disciplinary anti-corruption “fusion centre” supported by the ANC, Mr Grootes very decently rang me recently to say that he thinks this is a good time for me to reply to his article. But I said that, because of the anger people rightly have about the PPE corruption, nobody would be interested in my views on what happened in 2008.
But then I was approached by others and by News24 for a Q&A. So I thought maybe I would just get this over with; agreed to News 24 interview (21 August 2020) and also to reply to Mr Grootes.
First, some clarity. Mr Grootes considers the broader question of why MPs “commit deeds that would normally go against their own conscience because their loyalty (to their political party) comes first”. His general argument certainly raises interesting issues, and it seems to me that an ANC MP or other leader should reply and present an alternative perspective. I only address one specific example – the disbanding of the Scorpions – that he uses to make his general case.
Part One of this article deals with the ANC’s National Conference decision to disband the Scorpions, the reasons for this, and why there were issues of strategy, not of conscience, at stake here.
Part Two deals with the extensive parliamentary process on the Scorpions’ disbanding, the key features of the Hawks, why the Hawks haven’t worked effectively, and the need for us to create a new organised crime unit (OCU) that overcomes the weaknesses of the Scorpions and the Hawks.
In replying to Mr Grootes on the Scorpions issues, and entering the public domain on this, am I transgressing my accountability to the ANC? I can’t see that I am. All political parties have to have a measure of collective discipline which members must abide by if they are to function with a minimum degree of cohesion. This is especially so with MPs, particularly if they’re elected on a PR list system.
In the ANC, the accountability is in terms of “democratic centralism”. In the ANC-led movement, we will not be able to survive without an appropriate form of it. Basically, “democratic centralism” refers to the need for a structure to have the fullest robust discussion on a policy after which a decision is taken by a majority, and those who don’t agree with the decision have to defend it and act in unity with those who agree.
This is especially so as the ANC is not an ideologically tight, narrow, electoral party representing a very specific social strata with precise policies directed at a clearly defined constituency. It is, rather, a broad national movement including all classes and strata of people guided by the Freedom Charter and committed to implementing what we refer to as the “national democratic revolution” – which basically refers to a particular way of addressing four inter-related tasks of welding a sense of nationhood, consolidating our democracy, significantly reducing the material inequalities in our society, and ensuring national sovereignty in the context of a globalised world.
For a broad movement like this – with, for example, Marxists, social democrats and free-marketeers, gender activists and traditional leaders, abstract non-racialists and those with narrower identities, Struggle veterans from the 1950s and members born after the 1994 democratic breakthrough – it would have been impossible to have survived for so long, frayed though we are now, had we not had a measure of democratic centralism.
Securing cohesion becomes even more challenging as the ANC is part of a strategic alliance with the SACP, Cosatu and Sanco.
But there are no easy answers on how to manage “democratic centralism” concretely in all specific circumstances. And while some – in increasing numbers – have strayed from this, others have a very rigid adherence to it, often using this tendentiously, with most in a continuum in between.
In any case, these days senior ANC leaders publicly declare their differences after losing out on their positions in structures – and, worse, others speak anonymously or leak documents to the media.
I’m in the open. Mr Grootes attacked my integrity. So I have the right to reply. No ANC leader responded – and nor did I expect anybody to – that it wasn’t my personal policy to disband the Scorpions, but that of the ANC.
Anyway, with a new focus on a more integrated multi-disciplinary approach to tackling organised corruption, and people referring to this as the revival of the Scorpions, we obviously need to review the experiences of the Scorpions and Hawks. So I can’t see how, by providing an overview of the issues here, I’m violating any responsibilities to the ANC.
So, to the facts. I did not lead the campaign to “shutter” the Scorpions, as Mr Grootes claims. It was the ANC’s December 2007 National Conference, attended by about 3,900 delegates, that adopted a resolution on this. Nor did I introduce a Private Member’s Bill to disband the Scorpions. The two relevant bills were introduced by the Cabinet.
Mr Grootes singles me out simply because I chaired the Justice Committee in the National Assembly (NA). It wasn’t that I put my hand up and said, “Please, me, I want to do the job!” It wasn’t as if I fanatically led the disbanding of the Scorpions to protect some ideological or personal self-interest. Our committee, moreover, had to work together with the NA Safety and Security Portfolio Committee and the relevant National Council of Provinces Select Committee. The three ANC Study Groups – ANC members of the committees – had to collectively answer to the ANC Parliamentary Caucus on the implementation of the 2007 resolution.
Why were the Scorpions disbanded?
So why were the Scorpions disbanded? The sole reason in the public discourse was that it was to prevent senior leaders of the ANC being prosecuted for corruption. But in a broad movement like ours, there were, understandably, a range of other views on this. Briefly, these included:
- The Scorpions had too broad a mandate: there was a lack of clarity on what made up “organised crime” and they were taking on cases that weren’t part of their mandate;
- They had also begun to take over functions of other crime-fighting agencies. There were constant jurisdiction battles and tensions between the Scorpions, the SAPS and other criminal and intelligence investigative agencies;
- The Scorpions and SAPS investigators sometimes pursued the same cases using different guidelines;
- The Scorpions were accused of carrying out intelligence functions which fell outside their mandate instead of using the legitimate intelligence agencies;
- There were complaints that they were selective in the cases they pursued, focusing on those with a high probability of convictions and a high media profile, so they would come across as superior to other crime-fighting units;
- Many of these tensions were aggravated by the resentment of other crime-fighting units – that the Scorpions were given far more resources than other units who felt that they could also do much better if they were given more resources;
- There were challenges in ensuring overall accountability because the prosecutors were accountable to the justice minister, and police to the safety and security minister;
- There was a strong view that the Scorpions were being used to settle political scores within the ANC;
- Moreover, the way the Scorpions managed their preliminary statements on cases, and their aggressive media profiling of investigations in progress, as well as their media leaks, served to undermine the rights of some people to a free trial. Sometimes this approach damaged the integrity of innocent people who were never brought to trial or publicly apologised to;
- It was also argued that there were too many people from the apartheid order in the Scorpions who were seeking to settle their own political scores;
- The Scorpions were using outside investigators, including former apartheid intelligence operatives, who had access to sensitive information without being vetted;
- They were also accused of using foreign intelligence agencies which they had no mandate to do;
- Some experts raised concerns that prosecutors were not guiding, but leading investigations, and became too immersed in them to make an objective decision as to whether to prosecute or not. Usually, prosecutors keep a distance from the investigation and review the police docket to decide whether to prosecute or not. It wasn’t that the prosecutors should not be involved in the investigation process at all, but the way the Scorpions were involved raised concerns. Some felt that this well-intended system was too advanced for a newly emerging democracy; and
- The ANC was being torn apart by tensions over the role of the Scorpions, and there was increasing tension between the government and the ANC under its new post-Polokwane leadership, raising concerns about the role of the Scorpions in this new context. With the ANC having an electoral base of close to 70% at the time, these tensions were impacting on the broader society, so it wasn’t just an internal ANC matter.
Of course, each of these reasons for disbanding the Scorpions can be questioned. Some of the reasons may just have been perceptions – but they certainly had negative practical consequences that had to be addressed.
Some of these tensions between crime-fighting units were inevitable, and happen in other countries too, but they had gone too far in our case. Rather than looking at each reason separately, they should be taken as a whole – and, as such, they certainly made a reasonable case to consider scrapping the Scorpions. Even if this is not accepted, surely it is rather skewed to reduce the Scorpions’ disbanding solely to the view that it was done simply because some ANC leaders were trying to avoid prosecution?
Could all the above concerns have been addressed without disbanding the Scorpions? Not after things had got to where they had; not in the context and mood then – not with all those tensions and rivalries within and between the ANC, government and the crime-fighting agencies.
The Scorpions had become too controversial. It was decided to draw on the major strengths of the unit and create a new organised crime unit (OCU).
I’m not naïve. I understand perfectly that at this time, in this mood, most people don’t want to hear any explanation for the disbanding of the Scorpions. I understand that my answers may anger many. And while I’m certainly not personally responsible for the decision to disband the Scorpions, I am part of the collective ANC that did, and, in that sense, I am certainly responsible.
A strategic issue, not a matter of conscience
But just why does Mr Grootes elevate the strategic decision to disband the Scorpions to a matter of “conscience”? Because he thinks it’s a matter of conscience therefore it is? Because he’s upset that the Scorpions were disbanded and can’t bring himself to see that there may be legitimate reasons to disband it that are not related to errant ANC leaders trying to avoid being prosecuted?
And sitting on his moral perch, does it make him feel good about identifying those of us guilty of “soulless bargains”? All he has to do is spout words – but the moral choices he has to make are mostly in black and white. Certainly much clearer and easier than in the often “grey zone” in which MPs have to operate… where you have to sometimes make difficult strategic and tactical decisions that affect the public. To the extent that there are moral underpinnings to some of these choices, they are certainly not as clear as those we make in our private lives.
Moreover, they are not choices based on individual conscience. You are part of various political collectives within which you can have your full say – and I most certainly do – but ultimately you have to abide by and represent the majority views.
Of course, a political party also has to have a “collective conscience”, but this evolves in a very complex, collective, uneven, more pragmatic way than it does in our private lives. And it’s even more complicated in a broad movement which encompasses such a range of different people with such competing interests as the ANC-led alliance.
In my telephonic exchange with Mr Grootes after his Daily Maverick article, I was told: well, as the chairperson, you could have stopped the Scorpions being dissolved if you wanted to. But how? As a single individual chairing one of three committees processing the bills based on a conference decision of about 3,900 delegates? Like some sort of tinpot dictator? What would that say about the quality of internal democracy in a party? I have no such power. Nor should anybody. In any case, where has there been an example of a single MP in the proportional representation (PR) list system through which we have been elected since 1994 stopping a party conference decision being implemented?
But you do have a choice. In the very first instance, not to accept nomination to a PR list of a party that doesn’t allow a “free vote” on policy decisions. If you accept the nomination, you obviously accept the terms of serving that party.
And you do have another choice: if a decision of the parliamentary caucus is offensive to your conscience, you can resign. Nobody will force you to stay. And if you do leave, you should be respected and not be seen as a traitor. What, for example, if you’re an MP who’s a religious leader? It’s the right of any MP to leave.
But the ANC’s decision to scrap the Scorpions was not a matter of conscience. It was a strategic decision. For some, it was even a tactical decision. And to lay the blame for State Capture on those of us who processed the bills is entirely unfair.
Mr Grootes extols deceased ANC veteran Ben Turok for acting with his conscience by refusing to vote for the Protection of State Information Bill in 2013. But he did vote for the disbanding of the Scorpions. And if the decision was so morally repugnant, why did other MPs, seen as generally honest like Naledi Pandor, Trevor Manuel, Derek Hanekom, Zola Skweyiya, Imam Solomons and Jeremy Cronin, vote for it too? And so, no doubt, would have Andrew Mlangeni, Aaron Motsoaledi, Pravin Gordhan, Sister Bernard Ncube and others, if they’d been in Parliament then.
There are ANC MPs with strong religious convictions – some who are even religious leaders who may have had moral issues about the abortion and civil unions or gay rights bills – but they voted according to the ANC mandates. In this context, could the disbanding of the Scorpions bill really be seen as a major issue of conscience?
By presenting the decision to disband the Scorpions as an issue of conscience, what is Mr Grootes doing if not putting all of us in the ANC on the defensive, and discouraging a full debate on what lessons we can learn from the experiences of the Scorpions and Hawks?
If there were moral issues at stake, in what way did we behave immorally? We tried to get a new, strong OCU created, drawing on the strengths of the Scorpions, and we most certainly wanted it to significantly reduce corruption.
We never abandoned a moral and practical commitment to this – and the continuation of the Scorpions, a specific form of OCU, can hardly be considered as morally binding on us. The fight against corruption – yes, that is!
I try in Part Two of this article to explain why we couldn’t reasonably foresee what exactly would happen to the Hawks – though we have to take some responsibility for this.
Ours was not a failure of conscience, Mr Grootes, but a failure of imagination.
Often the view is that MPs just blindly implement party mandates for fear they will lose their jobs, especially in a PR list system. Obviously that is a consideration. Who wants to lose their jobs, anyway? But is it simply this, applying to all MPs, even those who can earn more and lead less challenged lives in other roles? Isn’t it more complex? Couldn’t it be a commitment to the ideology, values, goals and policies of a party? A sense of identity? And an acceptance that even if you disagree with some policies of the party, it is democratic to accept the majority decisions on this?
In national liberation movements like the ANC, with those MPs who were part of the decades-long Struggle to overthrow apartheid – increasingly few as they are becoming – there are strong emotional, psychological and other bonds that make it very difficult for them to tear themselves from their political “home”, disgruntled as they might be with some of its policies and actions. But this also applies to some extent to some of the newer generation of MPs. This, and more, I’m sure Mr Grootes well knows, but his article doesn’t consider these issues.
I certainly don’t dismiss Mr Grootes’ article as a whole. As I’ve said, my focus here is only his using the disbanding of the Scorpions as an example of where “blind loyalty trumps conscience” to explain why I believe that this was a strategic, not a conscience, issue. But his article as a whole raises helpful issues, referring not just to ANC MPs but MPs generally, including in the US.
In any case, his article is also relevant to the issues that came to the fore in 2017, when the NA Speaker decided to allow a secret ballot on a motion of no confidence in former president Jacob Zuma following the Constitutional Court’s decision that the Speaker had the power to do so, opening the possibility for “free votes” for MPs.
The issue that has emerged since is: under what circumstances, if any, can there be a conflict between a party mandate, the obligations of MPs to abide by the Constitution, and our responsibilities to the electorate in a context where they do not have the right to elect any of us through constituency contests?
If the ANC does allow a “vote of conscience”, what criteria will it use and how will it – being the broad movement it is – be able to do so and still maintain unity? These are complex issues that may well arise in future, given the 2017 Constitutional Court decision. At some stage the ANC needs to develop a response to this.
Part Two of the article deals with the extensive parliamentary process of disbanding the Scorpions, what became of the Hawks, as well as related issues. DM
Yunus Carrim is a veteran activist, ANC MP since 1994 and SACP Central Committee and Politburo member.