At a press conference last week, the chairs of the portfolio committees on safety and security and justice indicated that the Scorpions would be shut down regardless of public petitions or inputs made at their public hearings. The hearings are being held over the coming weeks on two Bills that provide for the unit to be dissolved.
Justice committee chair Yunus Carrim said the decision to close the Scorpions was taken by the African National Congress (ANC) in Polokwane, implying this was sufficient justification.
These statements are of concern because they indicate that the committee will not subject the legislation to proper scrutiny. This is notwithstanding the fact that the resolution from which the Bills originate misrepresents the Constitution.
Mindful of the overwhelming parliamentary majority held by the ANC, those in favour of retaining the Scorpions who are appearing before the committee may nevertheless try to work within the parameters set by it.
One option is to try to improve the framework provided by the South African Police Service (SAPS) Amendment Bill. The Bill provides for a Directorate of Priority Crime Investigation (DPCI) located within the SAPS under the control of the national police commissioner.
A number of non-governmental organisations (NGOs), including the Centre for the Study of Violence and Reconciliation, anticipating that the committees would reject the arguments they have advanced for retaining the Scorpions, have all made alternative recommendations. These speak to the issue of trying to ensure some independence from the authority of the national commissioner for the DPCI, irrespective of its location.
It is, however, difficult to see how the independence of the unit would not be hopelessly compromised.
In the words of one submission, the Scorpions have "proved to be a unit that does not flinch from holding the powerful to account", a fulfilment of the principle of equality before the law enshrined in the Constitution. But one result of the Scorpions' closure will be that law enforcement personnel, including those in the DPCI, will internalise the lesson that they will be punished if they try to uphold these principles.
This will be reinforced by the fact that the SAPS has inherited the culture of the former South African Police in terms of which deference to political authority takes precedence over the need to uphold ethical or legal principles – a culture reinforced by senior management practice within the organisation. Members of the DPCI will not be able to avoid succumbing to the overall culture and institutional pressures facing units within the SAPS, even if the "independence strengthening" measures recommended by the NGO submissions are adopted.
Another option, also in line with the parameters set by the committees, is to accept the dissolution of the Scorpions but motivate for an independent unit to be established. A submission by Peter Gastrow of the Institute of Security Studies argues that if the Scorpions are not retained, "the Bills should be withdrawn so that the government can initiate a thorough investigation into the option of establishing a body with similar characteristics" to the Scorpions but outside the SAPS structures.
This option makes sense in that it retains the benefits of an independent unit, but meets the apparent need on the part of the opponents of the Scorpions for such a unit to be located outside of the National Prosecuting Authority (NPA).
The problem with this option is that it requires acceptance by MPs that the Constitution indeed allows for investigative units other than the SAPS. This, however, conflicts with the Polokwane resolution that "the constitutional imperative that there be a single police service should be implemented".
At the time of the drafting of the Constitution, the emphasis on a single national police service was primarily motivated by the fear that making policing a matter of provincial authority would feed into the hands of political groups such as the Inkatha Freedom Party, then motivating for a federal dispensation that would provide greater autonomy to KwaZulu-Natal and perceived as posing a secessionist threat. That other police services, or other types of security agencies, are allowed for is made explicit by section 199(3) but these must be established by national legislation.
The reference to a single police service in section 199(1) of the Constitution also reflects the fact that, during the transition to democracy, the 11 existing police forces had to be integrated with each other to form the "single" SAPS. It is therefore clearly mistaken to talk of a constitutional principle or "constitutional imperative" that there should be a single police service, a fact confirmed by the Constitutional Court and the Khampepe commission.
Considering that many democratic countries have a diversity of policing agencies, it is evident that there is no underlying principle undermined by having more than one policing agency. If there were indeed such a constitutional imperative, then the Special Investigation Unit of the NPA and all municipal police departments would also have to be integrated into the SAPS.
Nevertheless, it is difficult to see how ANC MPs can allow a proper interpretation of the Constitution to be entertained, as to do so would dispose of the fiction that forms the original basis for the case against the Scorpions. Effectively, they would concede the truth that the Polokwane resolution is based on a misrepresentation of the Constitution.
One of the key difficulties facing the Scorpions hearings will be if ANC MPs have turned the Polokwane resolution into an article of faith. In fulfilment of its logic, they will then refuse to consider the need for investigative agencies located outside of the SAPS. The committees will then only consider a very narrow and highly compromised resolution of the issue.
Alternatively, they will need to clarify the meaning of section 199(1) and allow themselves to break from the false interpretation given to it at Polokwane.
David Bruce is a senior research specialist at the Centre for the Study of Violence and Reconciliation.
Originally published in Daily Dispatch.