Experts point out the crucial flaw in the new ‘Scorpions’ unit that dooms it from the beginning

on the backfoot President Cyril Ramaphosa. Image: Reuters/Hannah McKay

In a country that has been ravaged by corruption and profligate looting, the announcement of a crack squad within the National Prosecuting Authority (NPA) to bring state capturers to heel will come as cold comfort to many affected South Africans.

Among them is tough-talking businessman Hugh Glenister, the man behind a protracted court bid to halt the disbanding of the Scorpions and then to cement the independence of the Hawks.

A decade after the Scorpions – also known as the Directorate for Special Operations (DSO) – were disbanded, Ramaphosa’s new prosecutorial arm has been vaunted to fill the void they left behind.

“I am deeply suspicious of Cyril … maybe we will need to be back in court to reinforce that he can’t simply take it [the directorate] away when it gets too close to him. We’ll be in the same position we were 10 years ago,” Glenister told Times Select.

He had championed and self-funded a litigation campaign to stop the now-defunct DSO from being shut down.

In 2008 he petitioned the Pretoria High Court to interdict then president Thabo Mbeki’s bid to initiate legislation that sought to disband the unit.

His ultimately unsuccessful challenge found its way to the Constitutional Court after the lower court ruled that they could not interfere with the executive’s power to prepare and initiate legislation and parliament’s right to deliberate on legislation brought before it.

At the time, critics slammed the dissolution of the DSO as a ploy to take the heat off then ANC president Jacob Zuma as he faced arms deal corruption charges.

Glenister said in the years after the Scorpions ceased to exist, corruption and criminality had been allowed to run rampant.

The ones who have lost the most after the Scorpions were shut down are the poor because corruption flourished.

Hugh Glenister 

“The ones who have lost the most after the Scorpions were shut down are the poor because corruption flourished. As often happens, the people who can ill afford it are the ones who suffer the most.

“Why is this being done now, before an election? I am somewhat concerned that it is simply political rhetoric. If he [Ramaphosa] is genuine, it is a move in the right direction,” he added.

Over and above the fact that the state capture directorate is completely without funding, Ramaphosa’s proximity to the directorate’s self-destruct button has been called into question.

Advocate Paul Hoffman, of clean public service advocacy group Accountability Now, says the formation of a rejigged Scorpions “would not fly”.

“The courts have ruled regarding the nature and qualities of our anti-corruption machinery of state. The state is bound by these rulings. The proposed directorate ought to be adequately independent,” he said.

“While the government may be able to find specialised and trained personnel who are properly resourced in guaranteed fashion, the independence and security of tenure of the directorate is highly questionable,” he added.

Freedom from executive influence and interference is unachievable because the directorate serves at the pleasure of the president.

Advocate Paul Hoffman, Accountability Now

“Freedom from executive influence and interference is unachievable because the directorate serves at the pleasure of the president, who heads the executive. It is also limited by the terms of reference he prescribes,” Hoffman said.

He referenced the Constitutional Court’s ruling in Glenister’s litigation campaign, specifically: “… [On] a common sense approach, our law demands a body outside executive control to deal effectively with corruption.”

“Patently, the directorate won’t be such a body,” he said.

Hoffman said the only way the NPA could obtain investigative capacity now would be via presidential intervention.

“The presidential announcement is invalid; any attempt to establish the directorate can be struck down as inconsistent with the constitution as interpreted in the Glenister litigation.”

Phephelaphi Dube, of the Centre for Constitutional Rights, said a concern that the state capture directorate could be dismantled to protect political interests would always loom large.

“Legislation empowers the president to establish the state capture directorate within the NPA. However, this has to be at the recommendation of the political heads of both the NPA and SAPS. Both thereafter retain the power to rescind the recommendation, thus dismantling the state capture directorate.”

“While the NPA Act provides that the NDPP will have ultimate control over the state capture directorate, this is not a sufficient guarantee of independence, as the possibility of being dismantled, without reasons or cause, will always loom large,” she said.

Dube held that for the state capture directorate to successfully investigate and prosecute, measures would have to be put in place to separate it for those at the levers of power.

“The directorate will not only require sufficient funding, expertise, but also a high degree of independence to guarantee that the wrongdoers are held accountable and that the seeming impunity for politically connected individuals is put to an end.

“The very nature of ‘state capture’ means members of the executive may be implicated in unlawful activity. It is, therefore, a concern that the president may dismantle the state capture directorate upon the recommendation of the political heads of the NPA and SAPS. The NPA Act does not require the president to have a just cause for the dismantling,” Dube added.   

This independence, she said, was necessary to ensure the directorate did not meet the same fate as did the Scorpions previously.

15 February 2019

Reading Time: 4 Minutes Article Number: 3 / 27 Jeff Wicks Journalist

Published in TimesLives