BACK in the early 2000s, the Institute for Security Studies commissioned me to write a monograph on the Scorpions. The National Prosecuting Authority (NPA) provided access to their Scorpions staff — who were allowed to speak freely and anonymously — for interview purposes. At the time, the NPA was still grappling with the question of how the Scorpions “mandate” should be defined, so this issue was part of the research brief.
One of the key messages emerging from the interview process with both internal and external stakeholders was that it was less important to define what types of cases they take on than to manage how cases were selected and to have proper oversight — to ensure actual and perceived bias in their operation would be minimised. But at the time the Scorpions enjoyed the support of an all- powerful president, and this message went largely unheard.
This issue of a lack of oversight to prevent actual or perceived bias or manipulation is one that won’t disappear — it will also confront the super-organised crime unit that is supposedly going to emerge out of the apparently cast in stone amalgamation of the Scorpions and the South African Police Service organised crime units.
The safe bet is that we will hear little or nothing about what the new unit really does if the current commissioner-on-voluntary-leave, Jackie Selebi, or someone like him, continues to hold the reins of the police.
The stranglehold on information Selebi has inculcated in the police is part of the damage done during his tenure. Even government departments, such as provincial departments of safety and security or metropolitan municipalities, find it difficult or impossible to get regular crime information in usable form out of the police for the purpose of carrying out their mandates. But that is another issue.
At the heart of the move to bring down the Scorpions is the allegation that they have manipulated case selection for political means and have targeted (or failed to target) persons for reasons other than the evidence at hand.
Because of an absence of oversight mechanisms such as those referred to above, we cannot know whether and to what extent this has or has not in fact happened within the Scorpions.
There is a worrying tendency in SA for the good governance of institutions to be reliant on the integrity of individuals.
Throughout their short existence, the Scorpions have said “trust us” on how they would select their cases and carry out their work. This is simply not good enough for good governance in the criminal justice system.
Oversight mechanisms are there to protect institutions and to make sure their proper functioning is independent of the individuals who people them. Such mechanisms are there to ensure that those with integrity aren’t left open to unjustified negative perceptions and to ensure those without integrity are exposed and removed from institutions.
It is interesting that those who say the Scorpions have been manipulated haven’t bothered to identify individuals responsible for this biased work — they have largely blamed the institution rather than individuals. There has instead been general talk about weeding out all those “apartheid security operatives”.
Without proper oversight mechanisms, those pointing fingers are reduced to identifying inappropriate conduct not on the basis of evidence but rather than on the basis of the alleged political incorrectness of the curriculum vitae of Scorpions operatives in general. Never mind that the age of the majority of ordinary Scorpions investigators is such that they would have been children during the apartheid years.
The main objection to oversight measures applied to organisations such as the Scorpions centres on concerns that their work would be disrupted by burdensome oversight procedures or that investigations would be compromised by such measures.
This ignores the fact that such measures can be designed precisely not to do so.
For example, they could be ex post facto, requiring the Scorpions to report every two years to an independent body on the information or evidence brought to their attention — or pro-actively uncovered — and the decisions taken in relation to that information or evidence, as well as the reasons for those decisions.
During the Khampepe Commission hearings, it was suggested that the mandate of the Independent Complaints Directorate (ICD) should be extended to cover the Scorpions.
Presumably the ICD will indeed be authorised to investigate the new super-organised crime unit where complaints of brutality or misconduct are lodged with the ICD, as the ICD has these powers in relation to the police in general and the unit is supposed to form part of the police.
But the ICD, with its 175 employees (and only 65 field investigators nationally), is barely able to keep up with its current workload, which includes investigating close on 700 deaths in police custody or as a result of police action annually.
Furthermore, a complaints procedure can hardly work as an oversight mechanism if what a unit does — or chooses not to do — is not known outside the unit.
Thus we are told, we are to have a new super-organised crime unit, apparently with pretty much the same powers that the Scorpions now have (pity about the lack of prosecutors).
The only real changes are a switch in reporting lines, the ICD complaints mechanism, and presumably, after 2009, new political masters.
No one has breathed a word about new oversight measures.
How do we know that the new political masters will not simply use the unit to target their political opponents — or, perhaps more importantly, to not target political allies? Already, we hear of investigations into Mbeki-era contracts being lined up. Are we really just going to allow such a unit to say “trust us” again?
Redpath is the author of The Scorpions: Analysing the Directorate of Special Operations. (Institute for Security Studies monograph No 96).