On 4 August 2020, the national executive committee (NEC) of the African National Congress (ANC) ‘called upon the ANC-led government [to] urgently establish a permanent multi-disciplinary agency to deal with all cases of white-collar crime, organised crime and corruption’.
Justice and correctional services minister Ronald Lamola raised the matter in the meeting and mentioned the Scorpions in his proposal. The structure could be similar to the Scorpions, a unit which was led by prosecutors in the National Prosecuting Authority (NPA), rather than the South African Police Service (SAPS) (under which the Hawks are currently situated).
The NEC’s decision came amid public outrage over corruption relating to the relief funds made available to combat the Covid-19 pandemic.
But we had such a unit – once. The ANC created it, and then destroyed it.
In 1999, former President Thabo Mbeki announced the creation of a special investigative unit to deal with organised crime, including corruption. The unit – the Directorate of Special Operations or ‘The Scorpions’ – was established in 2001. It was located within the NPA and had special investigative and prosecutorial powers.
The Scorpions were located within the NPA rather than the police for a key reason. The constitutional framework governing the NPA at the time gave the National Director of Public Prosecutions (NDPP) final authority over decisions relating to prosecutions, free from interference from the National Executive. This means that the unit was able to investigate and prosecute members of the Executive without fear or favour. Such autonomy would not be possible under the SAPS, over which the Minister of Police – and thus Cabinet – enjoyed considerable influence.
The Scorpions soon became famous among South Africans for their successful investigations and prosecutions of high-ranking ANC officials, mostly relating to the corruption in the Arms Deal.
Extraordinary success rate
By 2004, the Scorpions had completed 653 cases – 273 investigations and 380 prosecutions. Of the 380 prosecutions, 349 resulted in convictions, an extraordinary 93% success rate, unheard of in South Africa by today’s standards.
From 2003 to 2005, the Scorpions investigated and brought charges against then former Deputy President Jacob Zuma and his friend Schabir Shaik. Shaik was ultimately convicted of corruption and incarcerated.
Zuma was charged with 783 charges of corruption, fraud, money laundering and racketeering.
Zuma’s allies in the ANC and Congress of South African Trade Unions lamented the unit’s power and viewed it as a counter-revolutionary force that would disrupt the government’s transformative agenda. They began applying pressure to have the Scorpions disbanded.
In 2005, Mbeki appointed a commission headed by Judge Sisi Khampepe to investigate the powers of and rationale for the Scorpions, and whether it should be moved from the NPA to the SAPS and be overseen by the Police Minister.
In 2006, the Khampepe Commission, for the most part, approved of the good work of the Scorpions and recommended that it remain within the NPA, retaining powers independent of the police. The Cabinet accepted these recommendations.
Despite this, the pressure by the ANC to disband the Scorpions continued. In 2007, at the ANC’s Polokwane conference (where Zuma was elected president of the party), the ANC adopted a resolution that the Scorpions should be disbanded and its members moved to the SAPS.
No independence
To repeat, under the SAPS, the Scorpions’ members would be under the control of the Executive — the President and his cabinet — and would have no independence to investigate and prosecute corruption within government.
In 2008, the Cabinet produced draft legislation which would disband the Scorpions and amalgamate it with the SAPS. The Bill was sent to parliament where it was approved in October 2008. All ANC MPs voted for the disbandment.
Key ministers and parliamentarians who supported the unanimous vote included Thoko Didiza, Nkosazana Dlamini-Zuma, Alex Erwin, Geraldine Fraser-Moloketi, Barbara Hogan, Pallo Jordan, Ronnie Kasrils, Mosiuoa Lekota, Nosiviwe Mapisa- Nqakula, Trevor Manuel, Thabo Mbeki, Andrew Mlangeni, Sydney Mufamadi (now envoy to Zimbabwe), Andries Nel, Naledi Pandor, Jeff Radebe, Lindiwe Sisulu, Vincent Smith, Enver Surty, and Marthinus van Schalkwyk.
In 2009, two weeks before South Africa’s fourth democratic election, the NPA suddenly dropped the charges against Zuma, allowing him to become the president of the country.
The new legislation created the Directorate for Priority Crime Investigation or ‘The Hawks’. The Hawks reported to Police Commissioner Jackie Selebi, who had been under investigation by the Scorpions for corruption. Selebi was ultimately convicted for corruption by the last trustworthy NPA head, Vusi Pikoli.
In 2015, the Constitutional Court held (in the Helen Suzman Foundation case) that some of the sections of the Hawks legislation were to be ‘cut out’ so as to try to protect the Hawks from executive interference. This included a section that allowed the police minister to suspend and remove the head of the Hawks.
Completely toothless
Despite this, the Hawks have shown themselves to be completely toothless. There has not been a single high-profile corruption prosecution in the 11 years since they were founded.
In 2019, President Cyril Ramaphosa said he was thinking about some new state institution to investigate and prosecute corruption; nothing materialised. He promised to reinvigorate and re-capacitate the NPA, which was hollowed out by Zuma.
Last week, in response to the unfolding stories about Covid tender corruption, Ramaphosa announced that the Special Investigating Unit would be tasked with ‘probing’ allegations of wrongdoing. The SIU is not independent. It is under the full control of the executive.
The SIU also has no independent criminal prosecutorial capacity. All it can do is bring corruption to the attention of the Hawks and the NPA.
Much excitement greeted the appointment of Advocate Shamila Batohi as the new NDPP, who commenced her duties in February 2019.
While we all appreciate that she inherited an institution that was corrupted under Zuma, as at mid-2020 Batohi complained that the amount of work that needed to be done was ‘astronomical’, there was ‘rampant collusion’ between private attorneys and state attorneys, there were insufficient investigators and prosecutors (understaffing at the NPA and Hawks), and unless agencies like the Hawks were capacitated, ‘we’re not going to win this battle’.
Budget allocations
Batohi has said the NPA’s budget allocations were enough to fill some critical vacancies, but not all, nor enough to capacitate prosecutors.
This illustrates three things:
- Over the past 15 years, the ANC has systematically destroyed the effective legal mechanisms that allow the investigation and prosecution of government corruption. This has enabled their own theft and corruption to continue unabated;
- We still don’t have the tools to tackle corruption. Our current mechanisms are inept and prone to government interference. There have been no prosecutions for well-evidenced state capture in the past ten years; and
- Ramaphosa has paid lip service to fighting corruption. His recent concern and dismay is raised by the International Monetary Fund’s requirement that the spending of its loan be properly monitored. Consequently there has been a flurry of panic about a crisis that cannot possibly be resolved by the ANC.
The destruction of the Scorpions was aimed primarily to assist in stymieing the prosecution of Zuma so he could ascend to the presidency of the country. He did, and South Africa may well fail as a result – and the ANC is entirely to blame.
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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