I agree with commentators that there is almost no chance that the Constitutional Court will make any order at this stage to stop the adoption of the legislation to disband the Scorpions and incorporate some of its members into a special unit of the South African Police Service. The application is clearly premature and should have waited until the legislation was actually adopted.
But even then, chances would be slim for such an application to succeed because one would have to show that there is no legitimate purpose for the legislation (which would be almost impossible to d0) or one would have to show that the cabinet and Parliament had unlawfully abdicated its role as legislature and executive to the majority party leadership who had instructed them to abolish the Scorpions and had thus circumvented the Constitution.
If the Court made such a finding it would put severe strain on the system and might dent the credibility of the Court. AS the Constitutional Court has shown in the floor crossing case, for example, it would be extremely reluctant to get involved in such political controversies in the absence of a clear argument that one of the rights in the BIll of Rights are being infringed.
But some aspects of the legislation as it stanmds might be vulnerable. It states that “selected” members of the DSO would be placed in a new unit in the SAPS but it is unclear how these members will be selected. The members will also have to undergo a security clearance but as the Bill stands even that might not be sufficient as some members of the DSO may not be selected. This might infringe on the labour rights of the DSO members as set out in the Constitution.
Who decides who is “selected” to form part of the new unity and based on what criteria? As far as I can tell the Bill is silent on this. This is an ominous aspect of the Bill as it provides for the de-selection of some members of the existing Scorpions who might be working on the sensitive cases dealing with Mr Jacob Zuma na d Jackie Selebi.
If the Minister or the head of the SAPS can select or de-select who of the Scorpions should form part of the new unit this might open the possibility of rigging the process in such a way as to completely destroy the present investigations into high profile ANC types. This would be unconscionable.
It would not be possible for the CC to interdict Parliament, I think. Or they will never do such a thing. Also, theyw ill not find a law unconstitutional merely because they think the law has a bad or unwise purpose. But if it has NO legitimate purpose – i.e. it is purely aimed at stopping the prosecution of Zuma – then they can say that adopting the law was in conflict with the principle of the Rule of Law. Problem is, almost any law can have at least something of a legitimate purpose even though there might also be an ulterior purpose behind it. A court would be reluctant to second guess that purpose if the legislature has been able to give a legitimate purpose.
TM said he wanted to create a bigger and more effective crime fighting unit.
I think we should let him do that, after all he is the one who created the Scorpions.
Khosi
But one can argue that the key to their success was that they worked closely with prosecutors. This factor is being taken away as I understand it.
“more effective”: I don’t see how taking a unit with 90% success rate and incorporating them into one with 10% success is going to make them “more effective”.
It is inconceivable to disband a unit which is highly effective because they have problems. You sort out the problems, no? Wouldn’t THAT make them more effective.
I don’t see how we should just blindly “trust” TM on this one. There is no strategy that has been outlined that could argue for the unit becoming more effective, everything said points to the opposite. Maybe we could trust him if we were given a coherent strategic plan, one which also addresses the current efficacy of the unit and makes some kind of argument for why it would be better.
The “he created them” argument adds no substantive value.
ANC leaders clearly spelled out that the scorpions have to go because they have been infiltrated by apartheid spies and are targeting ANC leadership. TM is there to implement ANC policies as we have been told repeatedly of late. On what basis should we place trust in this new unit?
z,
Is it impossible that the work ethos that is in th Scorpion would rub off on the SAPS? Would that not be good?
Have you guys seen the Zapiro cartoon on mail & guardian today. A classic that had, even, me cracking.
Khosi
Your statement would assume work ethos, rubs off and that work ethos is a reason for their success.
Ok if we assume that the prosecution driven setup of the scorpions has no effect whatsoever. I don’t believe this is the case, but let’s assume it for argument’s sake.
We need to look at two major things:
1. Historical precedent: What has happened when more effective units were incorporated into less effective ones. Statistical probability can then help guide the decision.
2. The reasons for the efficacy of the one unit and the lack of it in the other unit needs to be explored. This is required to be able to make a determination of how practically we could expect the one to help the other.
In terms of point 1 it would be difficult for me to find precedents for this, maybe someone else knows how to go about getting this? Although not exactly similar we could look at the success in disbanding specialised units such as the child protection unit. They could serve as examples of how incorporating skills from such units into general policing have affected their efficacy. This can serve as a backdrop in analysing whether skilled personnel uplift or are dragged down. But that is but one aspect.
In terms of point 2 efficacy could be analysed in terms of:
1. Training and skills in police work.
2. Administration.
3. Leadership.
4. Quality of personnel.
5. Motivation or work ethos. (remuneration can fall under this)
(and what else?)
1. If you argue the scorpions will assist the police with their better training and skills. Then why bother a successful unit with this? Rather provide those police officers with the same training.
2. If you argue better administration. Then the police can be trained in that and especially management can be improved by putting better systems in place.
3. If you argue leadership, then I see two options. The scorpions should lead the police, or they should in some way analyse the leadership structures so that it can be duplicated or learned from.
4 . If you argue personnel quality then the police need to look at hiring practices.
5. If you argue motivation. Then they need to look at how to improve motivation, if remuneration plays a role then incorporation won’t solve that in itself, it could rather become a contentious issue. But I don’t see these things just rubbing off. (eg. The whole Batho Pele principles thing did not do much to improve work ethos in the two hospitals my wife worked at.)
The core theme I see is that of management and training. This is not what the scorpions will be doing once incorporated, and is not mainly what they should be doing since they aren’t trained to be trainers but implementors. Unfortunately there are limits to learning from just seeing someone else do something. You don’t have the broader base of knowledge and understanding from which they are making decisions.
So if what the police need is better training, management and administration. Why not duplicate the training and management structures that went into the effective unit? After all they have work to do and can’t become a training facility in themselves, and it is not what they were trained for.
In none of these can I find any argument that the scorpions would become more effective going over to the police. Instead I see them being taxed more with an attempt to uplift the police, and that will affect their efficacy.
You could argue that in disbanding the scorpions you are destroying the very model from which you want to learn.
In all of this the assumption was that their efficacy had nothing to do with the the close work with prosecutors. This is an assumption which is difficult to support, and yet even without it I cannot see this as a move which will somehow, hopefully be for the better.
So without any practical strategic arguments given for the move, but instead other reasonings (apartheid spies, NEC member targeting) serving as the main argument I want to ask a question.
On what practical or strategic basis should we “trust” that this move will rub off on the police and create a better unit? I cannot see anything but blind hope.
Zapiro:
Now Khosi, you know you were laughing in (or at) TM’s face? (;
The biggest problem with incorporating the investigators (not the prosecutors, who have always been and still are part of the NPA) into SAPS is the fact that their independence in investigating members of SAPS (like Selebi) or the Executive (like Zuma) would be severely curtailed. Under the NPA, there were attempts by the Executive to udermine the NPA’s independence as well (at least in the Jackie Selebi saga); but, fortunately, the NPA (albeit through Mpshe rather than Pikoli) had the balls (perhaps because they are backed by the law and the Constitution) to stand up against interferences. That is, in all probability why the ANC leadership at Polokwane took a principled stand that the Scorpions should be disbanded. By incorporating them (the investigators) into SAPS, they would have attained just that. For the NPA to prosecute, evidence is needed; and, evidence can only be obtained through proper investigation; which, in turn, can only be effectively done when the investigators are independent. While remaining a tool in the hands of the Executive (which is what a normal police force is), there can be no proper law enforcement against members of the Executive (or even the legislature, where members of the ruling party are being investigated) should they transgress the law, which elevates them beyond the reach of the law – which is a recipe for tyranny and despotism. Even though the expertise of the investigators would rub off onto SAPS if the investigators are being incorporated into that body, the independence would clearly not, which means that the entire work ethos would not be transferred to SAPS as you suggest, Khosi. In the end, the criminal law becomes ineffective as far as ruling politicians are concerned, and one would have a situation where: “The King can do no wrong” – remember the trial of the erstwhile ruler of the Ciskei? Whether we can afford that? Well, open question.
Zapiro – well, excelent as always
Prof de Vos, I see your problem with the envisaged legislation stating that ’selected’ members of the DSO will be incorporated into SAPS. The obvious inference would be that only investigators and admin staff would be incorporated into SAPS, as advocates (investigating prosecutors) of the DSO would remain part of the NPA. However, a further filtering of the new policemen and -women would under this terminology be possible to filter out those who might be perceived to be biased against their employer (the Executive) – and that is the whole problem with using the term ’selected’ in the Bill.