It is reported in the media that the Secretary General of the ANC, Fikile Mbalula, has had a Damascene revelation. He accepts that the Scorpions should not have been hounded out of existence by the ANC and hopes for their reincarnation. This is how Legalbrief Today summarised the reports on the topic:
“Mbalula backtracks on disbanding of the Scorpions
“ANC secretary-general Fikile Mbalula says the Scorpions were essential in the fight against crime, which is spiralling out of control. He told the Sunday Times that disbanding the unit — an initiative he spearheaded as a leader of the ANC Youth League — had emasculated the state’s law enforcement capacity.
“Established by then president Thabo Mbeki in 1999, the DSO was a specialised unit of the NPA tasked with investigating and prosecuting high-level and priority crimes, including organised crime and corruption. It combined investigation, forensic intelligence and prosecution, and was involved in several high-profile cases including Jacob Zuma’s arms deal charges and the prosecutions of Tony Yengeni and National Police Commissioner Jackie Selebi.
“After it was disbanded, its prosecutors were absorbed into the NPA and its investigators moved to the new Directorate for Priority Crime Investigation, commonly known as the Hawks. The decision was at the time seen by some as a political move. ‘The model of the Scorpions seemed to be working for us at that time, and to be honest the ANC needs to go back to that,’ Mbalula said.
“He admitted he had been among those who had criticised the Scorpions’ ‘Hollywood-style’ arrests, which were made in the public eye and embarrassed high-ranking politicians. ‘We were very big critics of the Scorpions, about the way to arrest. But from a quality point of view criminals knew that (when you were) surrounded by the Scorpions, it’s game over,’ he said. He said the state was now struggling to obtain convictions, especially for white-collar crimes.
“Four years ago, in the wake of the Zondo Commission revelations, President Cyril Ramaphosa set up the Investigating Directorate (ID) in the office of the NDPP. It operates in a similar way to the Scorpions but has so far recorded few major successes, due in part to lack of resources.
“‘From the point of the ANC, we will direct government to move into that gear now in terms of resourcing, and at the same time upgrading the skills levels of our elite police group that fight organised crime,’ Mbalula said. Scrapping the Scorpions had ‘watered down’ law enforcement and ‘really weakened the capacity of the state to respond, not to petty issues but to seriously complicated issues’,” the Sunday Times reported.
In the same story, the Sunday Times noted that “Justice Minister Ronald Lamola last week told Parliament that the government wanted to make the ID a permanent structure. ‘The NPA Amendment Bill seeks to amend the legislation to make the ID a permanent agency in the NPA and not one created and maintained or disbanded by proclamation. The Bill also aims to enhance the powers of the ID.’”
Assuming that Mbalula has been accurately quoted, his utterances are a far cry from the stance taken up on behalf of the ANC by Yunus Carrim in the columns of Daily Maverick in September 2020.
It is also worth noting that the ANC’s NEC took a resolution in August 2020 instructing Cabinet to set up urgently a stand-alone anti-corruption body not unlike the Scorpions but clothed with independence and permanence, neither of which were enjoyed by the Scorpions.
It also needs to be recorded that on 17 March 2011, the majority of the Constitutional Court, in terms that bind government, set the criteria for the anti-corruption entity that is demanded by the Constitution of South Africa and by the terms of its international obligations under the UNCAC, AU treaty obligations and under the relevant SADC protocol.
The case in question is called “Glenister 2” because in Glenister 1 it had not been possible to persuade the Constitutional Court of the irrationality of closing down the Scorpions. Had the court known then what we all know now in the wake of the findings of the Zondo Commission, there may have been no Glenister 2.
No such anti-corruption entity has been put in place, which explains why State Capture was and is thriving and why the corrupt are enjoying impunity against prosecution right up to the current day. Even the loot of State Capture, amounting to trillions of rands, is not being raked back by the hollowed-out and limping criminal justice administration of today.
As Secretary General of the ANC, Mbalula should explain why Cabinet has been allowed to ignore the resolution of the highest decision-making body of the ANC between conferences.
The Investigating Directorate (ID) of the NPA is no answer to the requirements laid down by the court; the proposed adjustments to its current status are also insufficient to render the ID Stirs compliant. The acronym Stirs stands for Specialised, Trained, Independent, Resourced (in guaranteed fashion) and Secure (in tenure of office). These are the criteria by which to assess the effectiveness and efficiency of the capacity of the criminal justice system to counter serious corruption.
The criminal justice system has not been successful against the politically connected corrupt operatives in SA since the demise of the Scorpions.
While the Scorpions were well trained and did bring specialised skills to bear, they were not independent in the sense that is meant in the court’s judgment nor can it be argued that their resourcing was guaranteed. Worse of all, they did not enjoy secure tenure of office, which is why it was so easy for the ANC to terminate the successful unit.
Question of independence
Independence implies independence from political influence, interference and impedance. The court requires that the unit be free of executive control. The Hawks reside under the control of the Minister and National Commissioner of Police. The NPA is answerable to the Minister of Justice who has constitutional “final responsibility over” the NPA. The Director General of Justice is the accounting officer of the NPA. So much for independence within that body.
Resourcing that is guaranteed was not in place when the Scorpions were operative, it is not in place with the under-funded ID and it is not planned to put guaranteed resourcing in place when the ID is upgraded to so-called permanent status.
The secure tenure of office requirement could have been met had the Scorpions been an independent Chapter Nine entity instead of a unit within the NPA, a body which lacks true operational and structural independence. It is because the Scorpions did not enjoy secure tenure of office as a unit within the NPA that they could be closed down by the simple majority of parliamentary votes for which Youth League leader Mbalula fought so hard at the time.
If Secretary General Mbalula is truly contrite about disbanding the Scorpions and putting the all-but-useless Hawks in their place, he can demonstrate this by reverting to the ANC NEC resolution of August 2020 and by insisting that the criteria set in Glenister 2 be put in place.
Making the ID permanent will not pass constitutional muster because that body will not and cannot be constitutionally compliant with the Stirs criteria while it remains within the NPA.
Sadly, the Cabinet labours under the misapprehension that it is not bound by the Stirs criteria. It is. The duty of Secretary General Mbalula is to point this out to the members of the ANC who have been deployed to Cabinet, especially the ministers of justice and police. DM