Maybe politicians should talk to their lawyers first

I am on record as stating that I do not think that a Constitutional challenge to the disbanding of the Scorpions has much chance of success. So it is with great skepticism that I read yesterday about the Johannebsurg-based businessman, Hugh Glenister, application to the Pretoria High Court for an urgent interdict against the government’s plan to pass legislation that disestablishes the Directorate of Special Operations (DSO) – otherwise known as the Scorpions.

His argument seems to be based on the principle of legality (or Rule of Law) which requires there to be at least a rational connection between a law passed by Parliament and a legitimate governmental purpose.

Even if we set aside the problems of whether the High Court has jurisdiction to hear an application interdicting the National Parliament from making a law or whether any court will ever be convinced at this stage that the matter is so urgent that it requires the court to issue an urgent interdict, the case seems doomed.

He will only be successful if he could show that there is no legitimate purpose for abolishing the Scorpions or incorporating them with the South African Police Services which in effect means he will have to convince a court that Parliament is about to act in bad faith, with an ulterior motive or in a completely arbitrary or capricious manner.

This is almost impossible to do because there surely are reasons – albeit bad ones – for abolishing the Scorpions or incorporating them with the South African Police Services that goes beyond the matter of Jacob Zuma and protecting the nefarious activities of a few bigwigs in the ANC. The ANC members of Parliament might say, for example, that it would be better to have all the organised crime fighting personnel in one unit under the police because they think this will be more effective in fighting crime.

One might say this is not going to work, but it is not utterly irrational for the ANC MP’s to say that we will strengthen the fight against organised crime by having one unit under the auspices of the Police. As long as MP’s in Parliament can point to one such legitimate reason, the requirements of the test will not be met.

This is why I was a bit surprised by the comments of ANC MP and member of the party’s National Executive Committee, Nyami Booi, (reported in this morning’s Cape Times) that regular police detectives lacked the skills to track down criminals involved in organised crime and that without the Scorpions the country was fighting a losing battle against organised crime. He called on the Scorpions not to leave but to share their expertise with the police.

A police detective does not have that type of capacity but the Scorpions have that kind of capacity. We say it’s an engagement that we need…. to be able to learn something from them [the Scorpions] and to build a capacity within the South Africa in order to combat organised crime.

This comes close to saying that without the Scorpions we cannot fight organised crime. If Parliament were to propose the complete disbanding of this unit, it would therefore suggest that they were knowingly taking steps to knee-cap the only unit effectively fighting organised crime. And this would suddenly not seem rational at all.

What this suggests (apart form the fact, perhaps, that members of Parliament should take legal advise on sensitive issues like this) is that President Thabo Mbeki’s view will prevail and that the proposals for dealing with the Scorpions would not include their complete disbanding. Government is probably going to try and make some sort of arrangement to bring them under the auspices of the SAPS. That is, if Mr Booi (one of the Travel Gate accused), has thought through his statement and has not merely said the first thing that came into his head.

Given the nature of the Police culture – militaristic and hierarchical and less independent than the Scorpions – this plan is probably not going to work because most Scorpions would rather find other work than work within the very different (and difficult) kind of police culture. But some would say it would be at least worth a try.

Personally if I was a pro-Zuma ANC National Executive Committee member (or if I was asked for my opinion by one) I would suggest that all this fuss and all this talk of constitutional challenges could have been avoided merely by proposing small amendments to the National Prosecuting Authority Act. In that scenario the Scorpions could then be retained while curtailing their ability to investigate high powered politicians such as Zuma or Mr Booi.

First, the definition of organised crime in section 7(1)(b) of the Act could be narrowed down to ensure that the Scorpions got involved only in “real” organised crime cases such as that of gang bosses and the like selling drugs and bribing the police (although Mr Selebi might not like this solution). At the moment the Scorpions can investigate anyone suspected of being involved in two or more acts of unlawful conduct with a similar intent. This means anyone from Western Cape DA leader Theuns Botha to Nelson Mandela could probably be investigated by the Scorpions if they wished.

Second, I would propose the scrapping of section 28(1)(c) which currently allows the Head of the Scorpions to extend the investigation beyond organised crime if “he considers it desirable to do so in the interest of the administration of justice or in the public interest”. Many of the cases dealt with by the Scorpions have been investigated in terms of this section and by scrapping it one would severely clip their wings and make it very difficult for them to investigate corruption in high places.

Lastly, I would propose an amendment to section 31 of the Act, to make mandatory the currently permissive requirements for a Ministerial oversight committee to set policy guidelines for operation of the Scorpions to make the setting of the policy guidelines mandatory. If this Committee had operated effectively to protect ANC bigwigs, they could have set policy guidelines that would have precluded many of the investigations now causing such distress among some ANC NEC members.

All these amendments could have been herded through Parliament with the “legitimate purpose” of strengthening oversight over the Scorpions and to ensure that they stayed sharply focused on organised crime (for which they were created) so as to ensure they do not stray into the field of high powered corruption. A quick, clean, hatched job would have been performed and it would have been the end of the Scorpions as we know them.

But politicians do not talk to the lawyers (or maybe not the lawyers who sometimes, at least, read the legislation) and then they create an unnecessary fuss and give the Democratic Alliance a stick to beat them over the head with. Tut, tut. Next time they must just ask me, and I could give them some advice on how to avoid all this embarrassment. I am, after all, an academic, so I do not charge that much. Maybe Thint or Oasis can even be persuaded to pay for my advice.

 

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