A lot at stake

2008-03-03 00:00

The country is besieged by criminals, the police are hardly coping, yet the government is now closing down the Scorpions, the most effective crime-busting unit in the country.

Meanwhile, the judiciary is being attacked on a daily basis by supporters of ANC leader Jacob Zuma who say it and the Scorpions are being used by political rivals of their hero to stymie his ambition to become president of South Africa.

The controversial decision to disband the Scorpions, or the Directorate of Special Operations, was piloted by Zuma’s supporters at the ANC’s December 2007 national conference. The ANC conference also endorsed another controversial proposal to make the Justice Minister responsible for “policy and budgeting for courts and all matters relating to the administration of justice”, which will essentially give executive powers over the judiciary, making a mockery of the Constitution’s call for separation of powers.

Safety and Security Minister Charles Nqakula announced during the debate on the state-of-the nation speech that the Scorpions would be dissolved and incorporated into the police’s organised crime unit and a new specialised crime-fighting unit would be established instead. These cases reveal a lot about the malaise of our democracy.

For starters, although the ANC conference resolved to dissolve the Scorpions, only Parliament has the authority to do so, since it was set up by an act of Parliament. So neither Zuma’s supporters at the ANC conference nor the executive in the form of Nqakula can announce the disbanding of the Scorpions. This incident shows again the extent to which Parliament is a lame duck to the executive and the party leadership. There has not been a whimper from any ANC MP. Of course, many of the ANC figures who cheered the break-up of the Scorpions did so because they probably hoped the unit’s investigations of them might be cancelled.

Insiders say there were some disappointed faces in the ANC’s parliamentary caucus when ANC deputy-president Kgalema Motlanthe told MPs that even if the Scorpions were incorporated into the police services it would not mean that probes into senior ANC members would be abandoned.

Another reason why some ANC members are cheering about the dissolution of the Scorpions is the general belief that state institutions have been used under the Mbeki presidency to settle political scores or silence government critics.

Only the most naïve would doubt this belief which is often borne out by practical examples that state institutions have been used to such effect.

This is one of the reasons why many of Zuma’s supporters insist that there is at least some element of Mbeki-inspired state prosecution of Zuma. Another reason for many, because of South Africa’s apartheid past where blacks were frequently criminally prosecuted for political actions, is that it is quite credible that a crime-busting unit such as the Scorpions or the judiciary may have ulterior motives. Moreover, some ANC members often still perceive ANC struggle leaders investigated by the criminal justice system as “victims”.

What aggravates this is that many ANC leaders have attacked individual Scorpions investigators for their participation in the “system” during the apartheid era.

Similarly, the judiciary’s pliability, with notable exceptions during apartheid and the subsequent collective to appear before the Truth and Reconciliation Commission, left it vulnerable to attack.

Of course the judiciary will have to transform in keeping with the values of the Constitution and become more representative of the country’s racial make-up. The problem has been that the need to transform the judiciary has often been abused by either the executive to control it, or, lately, by Zuma’s supporters who wants his case to be dropped.

Publicly attacking the judiciary, as Zuma’s supporters have done for partisan purposes disguised as pushing “transformation”, is very damaging to the institution and will undermine genuine transformation of the institution itself.

Closing down the Scorpions, especially in the light of the police’s crisis of credibility, seriously undermines the battle against crime. The new unit is likely to be disabled from the start by its incorporation into a police force whose public reputation has sunk to the depths.

The solution to the allegations of lack of accountability against the Scorpions is not to close the unit down, but to increase democracy, for example Parliament and civilian oversight and scrutiny over the special investigating unit.

Zuma’s supporters always make the case that his alleged misdemeanours are “small fry” compared to the gravity of crimes of other political figures still on the loose or who are seemingly being protected.

This argument misses the point quite badly. When corruption is as pervasive in a society as in our case, it does make sense for the investigating body to take at least one or more of these seeming untouchables, whether in politics or the criminal underworld, and send a clear message that criminal, political or economic power won’t be able to shield wrongdoers. What better way than to take the ANC leader to court to answer questions of alleged impropriety to make that point?

For another, Zuma’s supporters often insist that their man has already been “found guilty in the media”, but the flipside of the argument is that battering the judiciary ahead of Zuma’s trial date, the way his supporters have done, itself generates a “not guilty” verdict, even before the trial.

Lastly, to drop the Zuma case before it goes to court will create a flood of expectation that all other similar organised-crime cases under investigation by the Scorpions must also be abandoned.

Such a situation will undermine the credibility of the judiciary, the investigation authorities and the democratic credentials of the country itself.

• The second edition of W. M. Gumede’s book Thabo Mbeki and the Battle for the Soul of the ANC is now out.

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