The Scorpions are not back. What the new anti-corruption unit could, and should, look like

2019-02-17 08:43
President Cyril Ramaphosa gestures as he delivers his annual State of the Nation address, in the South African Parliament, on February 7, 2019, in Cape Town. (Photo by Rodger BOSCH / AFP)

President Cyril Ramaphosa gestures as he delivers his annual State of the Nation address, in the South African Parliament, on February 7, 2019, in Cape Town. (Photo by Rodger BOSCH / AFP)

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It was August 2005. I stood on the pavement on Epping Street in Forrest Town, Johannesburg as 18 members of the Scorpions scoured Jacob Zuma's home, 'Idle Winds', for evidence.

They had woken him at 06:30 that morning with a warrant, giving them permission to rummage for computer hard drives, documents, diaries and whatever else they believed would be used as evidence against him in a corruption probe.

At around 09:00 the relative calm on the street, which was by then cordoned off and occupied by TV news crews, was shattered when a black Jeep Cherokee came screaming down the road, blue lights flashing. Armed with semi-automatic rifles, the members of Zuma's VIP Presidential Protection Unit began banging down the gate demanding entry, shouting "vula, vula, vula".

What followed was a standoff between two separate institutions of the same government. It was this precise scenario that national director of public prosecutions Vusi Pikoli had warned his men about before dawn when he briefed them about the raid. They had to avoid bloodshed and tensions would run high. It was the police versus the Scorpions and the situation was heated.

READ: New corruption-busting unit is not the Scorpions, says Ramaphosa

Fortunately, there was no shootout and the standoff was deescalated, but this moment on Epping Street in 2005 tells a story about the successes and failures of the Directorate of Special Operations (DSO), why the public loved them, why the politicians hated them, and why they ceased to exist.

South Africans desperate to see end of corruption

The Scorpions were visible, there were no holy cows, they were methodical and they were successful. At that time, the public wanted to see justice being done and they welcomed the fact that politicians were being held to account for abusing the multi-billion rand arms deal for their own benefit.

People loved to watch the evening news and see the branded cars and officials carrying out hard drives that had been seized and crates full of documents. But the politicians in power saw them as a threat to their authority and legitimacy because they were picking and choosing which cases they investigated. It appeared as though those decisions were taken with an agenda. The argument was that the DSO was politically motivated and sensationalist.

It is precisely for all these reasons that there is such a desperation to have the Scorpions re-established right now. In the current climate, South Africans are pleading for an independent, effective institution to tackle corruption and they see the Scorpions as a panacea for the terrible plague of graft. This is why when President Cyril Ramaphosa announced in the State of the Nation Address (SONA) that a new directorate would be established within the national prosecuting authority (NPA) to investigate and prosecute state capture cases, we immediately assumed it would be just like the Scorpions. A Scorpions 2.0.

Only, we were wrong. It's not the Scorpions.

To be clear, what Ramaphosa has said, is that the directorate will be set up in accordance with Section 7 of the NPA Act and that he will soon be promulgating a proclamation that will set out the specific terms of reference of this directorate. Because he is yet to promulgate the proclamation, we don't actually know what these terms of reference are going to be. Sources within the NPA say they have not begun recruiting staff yet, nor do they have a director lined up, because they don't yet have all the details of what is required.

It's also important to understand that an investigating directorate in terms of Section 7 is not the same thing as a new Scorpions-type entity. In fact, they are almost impossible to compare.

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Instead, the new directorate will be more in the mould of the old IDOC under Percy Sonn, which was the investigating directorate for organised crime. IDOC was established to look at organised crime, specifically political murders and taxi violence, in the 1990s. Another example is the IDSEO, the investigating directorate for serious economic offences, which has been focusing on complex financial crimes and has been headed by the controversial Lawrence Mrwebi.

These were or are NPA structures with SAPS members seconded to them. They are not an independent corruption-busting crack unit which is impenetrable and isolated from political interference. By way of example, the infamous Bosasa docket spent years on the desks of IDSEO officials gathering dust, instead of being prosecuted. This was allegedly because its members were bought and bribed not to act.

Special requirements for the Hawks

By comparison, the success of the Scorpions was its independence and the line of reporting it followed. The accountability and responsibility for the unit was to the director and the NDPP and ultimately, to Parliament and not the president or the minister.

In 2011, the Constitutional Court handed down a crucial decision in the well-known Glenister case, brought by activist Hugh 'Bob' Glenister. The court clearly set out the criteria needed to establish an effective anti-corruption body. These became known as the STIRS requirements – a specialised, trained, independent, resourced unit which enjoys security of tenure.

The court gave Parliament 18 months to ensure the Hawks met these requirements. It's fair to say that over the past few years, we have seen that the Hawks have simply not shown themselves to be sufficiently independent as they have been central to the destruction of law enforcement entities in the country and played a key role in the state capture project.

Not what everyone wished for

Glenister, who has led the campaign to see a return of the Scorpions, says he doesn't believe that what the president announced is what everyone was wishing for.

"Look my first reaction was like, 'Wow!', however after analysing what he was saying in his speech it was very concerning for me that he was just electioneering, trying to promise a sector of society something they would like," says Glenister. "I don't believe given the ruling of the Constitutional Court in all my cases that he could make it fit on his declaration, because there's a whole set of requirements laid down by the Constitutional Court for a corruption fighting body."

Piet Jonker was a member of the original IDOC and was there when it was transformed into the DSO aka the Scorpions.

"I would say the Scorpions was more advanced. We were better resourced, we worked under our own legislation and the IDOC was just a founding unit to start off. We worked on the 'troika principle'. You had the investigator, the prosecutor and the analyst. So you get the information, you give it to the analyst, the analyst dissects it and starts building charts and drafts and tries to connect the dots. The analyst sits with the prosecutor and builds a case from it. IDOC became the Scorpions. All the guys from IDOC moved over to the Scorpions. I think this is going to be more like an IDOC than a Scorpions."

Jonker confirms what many believe was the Scorpions' greatest success and source of its strongest criticism: the selection of cases. "We would take one or two cases and research them and know we have a good chance of successful prosecutions. Then people would come in from the side and approach us, and we would say, OK, this latches on here."

Staffing the biggest challenge

The biggest challenge is going to be finding competent people to staff the new directorate with. Many old Scorpions have gone to the Hawks or private sector and the NPA is battling a massive vacancy rate.

"You need competent people that you don't have to train at Scotland Yard and the FBI.

I don't know if they will go on a recruitment drive," says Jonker. "How many Hawks have been arrested, suspended or directly involved in organised crime like heists and abductions? When they started the Scorpions initially, there weren't hundreds of thousands of people. We were at the most 550 people nationwide. So to start with something like that shouldn't be too hard. They don't need 500 people to start a unit like this. You need a dedicated team to start from."

In addition to capable staff, he says the unit also needs strong political protection, someone who will stand up against any potential improper interference.

READ: Ramaphosa jumps on the back of three growling tigers

"You need backup. You need someone who is strong, who stands their ground like a Bulelani Ngcuka or Vusi Pikoli. Pikoli was willing to fight criminals to the last. I hope she [Shamila Batohi] does what she's supposed to do and does the right thing and is willing to make decisions."

Step in the right direction

Another senior Scorpions investigator who has left the NPA and gone to the private sector, says the return of prosecutor-led investigations is a step in the right direction.

"The DSO had in-house capacity with prosecutors and investigators working equally towards fulfilment of the crime case load. It was well branded, extremely proud of its image, work ethics and team spirit overall. We looked at crime differently. It was the troika principle. The structure evolved because the ability to be a powerful criminal lies in the level of corrupt officials on your books as well as the mechanisms to launder money undetected. Cases were always strategically approached so as to make the biggest impact on the effectiveness of the criminal enterprises."

It is also beneficial to look retrospectively and glean lessons from the past. Where did the Scorpions go wrong and how can Batohi ensure this doesn't happen again?

"Our independence was possibly the biggest threat to the crime world at the time. Corrupt officials in other law enforcement were in the dark and might be the reason for the allegations that the DSO was working for and controlled by the CIA, etcetera. Political or parliamentary oversight as determined in the NPA Act at the time was never implemented," speculates an ex-Scorpion.

New unit must avoid undue external influences

Prince Mokotedi, the recently removed Hawks head in Gauteng, was once a witness in the Jackie Selebi case against his colleagues at the Scorpions. If anyone has criticisms of the DSO to learn from, it's him. But he's also generous with praise.

"The greatest success ingredient for the former Scorpions was that it had a good mix of expertise of lawyers, analysts and gatherers. The gatherers would identify a target, the analysts would probe further and present to lawyers who would put up a case for prosecution, " he says.

"The second success ingredient was the project approach to investigations. This brought all relevant players (SARS, AFU, FIC, etc.) to work together and embrace a prosecution strategy early in the investigation. There was genuine participation and no party was territorial.

"A critical area of improvement is that there must be a clear separation of duties between the lawyers who will prosecute and those who are involved directly in the investigation.

I also think that there is a need to have a team that assesses and approves cases to mitigate against undue external influences. The new unit must not wallow in their elite status but should engage with other law enforcement agencies as an equal partner."

Mokotedi suggests that the new directorate needs to be top of the range if it's to be successful.

"The former Scorpions dismantled a number of local real crime syndicates, and ran projects over a few years where they put in adequate resources into the investigations. You need a diamond to cut another. Therefore the new unit must have skilled and learned investigators (including accountants) and lawyers who are well resourced in order to investigate complex corruption cases or organised crime. The unit must follow the money wherever it has been hidden. This means that they should use international instruments and bilateral agreements to recover the hidden and looted funds."

During the height of the criticism of the Scorpions, Makhosini Nkosi was responsible for speaking publicly on behalf of the unit. He believes Ramaphosa's announcement should be welcomed, but we should be under no illusion that this is Scorpions 2.0.

"The establishment of a directorate that's going to focus on corruption, that's going to be located in the NPA, should be welcomed because that unit is only going to be as good as the new NDPP is. She is somebody I have great confidence in. I know where her heart is, I don't see her as someone who would be afraid to do what needs to be done. I don't know her as someone who would let people off or do favours for them. It should be welcomed but I think what we are not talking about is that the Scorpions were a South African invention. A lot of people would come to the NPA and study the model to duplicate it in their own country."

'Reopen the debate'

Nkosi believes that Ramaphosa didn't have the political capital to announce the re-establishment of a Scorpions-type unit, but he should have at least started the conversation.

"I don't think this is a matter that should be left to politicians. It's politicians that got us into the mess of rampant crime and state capture, it was politicians that were receiving bribes. It's a matter that should be taken to South Africans and it is opportune that an election is three months away. If you had a referendum, overwhelmingly South Africans would want the Scorpions back. It should be an election issue."

Hugh Glenister agrees that this is a debate that needs to be reopened. South Africa needs the Scorpions and he hints that there's fight left in him still.

"That's ten years of total destruction in our society. My fight is never over. When I can see that politicians are kept within their honest bounds and responsible to their citizens, then my fight will be over."

There may well be a return to court yet to ensure that we get the corruption busting unit we deserve.  

Read more on:    npa  |  cyril ramaphosa  |  shamila batohi  |  corruption
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