Yunus Carrim was co-chairperson of the parliamentary committee that replaced the corruption-busting unit Scorpions with the Hawks 12 years ago. He argues the process to replace the Scorpions was the product of many different forces and influences which must be understood before it is criticised. James de Villiers posed the questions.
1. How was the decision to disband the Scorpions taken?
I didn't get up one morning and personally hatch a decision to disband the Scorpions. It was a decision taken by the ANC's highest decision-making body, its national conference in 2007, attended by about 3 900 delegates. I didn't jump forward and put my hand up to say: "Me, please! I'll do it in Parliament!" I just happened to be the chairperson of the Portfolio Committee on Justice at the time. I am not a lawyer and had no particular interest in serving as the chairperson, but in the ANC, rightly, you can't yourself choose which committee you are appointed to or chair. So, your question should be put more to the 2007 conference delegates and the ANC national executive rather than to me.
2. Do you take responsibility for the Scorpion's demise though?
Our committee had to work closely with the Portfolio Committee on Safety and Security and the relevant committee in the National Council of Provinces to process the two bills to replace the Scorpions with the Hawks. I was answerable to these structures, as well as the ANC caucus in Parliament and the ANC's chief whip, so it's not as if I personally determined the fate of the Scorpions.
But I've become the poster boy for attacks on this. Of course, I understand people's anger about the disbanding of the Scorpions, especially with the increasing corruption, and I understand the personalisation of the issue and attacks on my personal integrity. But I think this is extremely unfair.
But fine. I'm certainly part of the collective ANC responsible for the dissolution of the Scorpions. But it's not as if the Scorpions were the flawless, anti-corruption angels they are projected to be.
3. So why did the ANC believe that disbanding the Scorpions was the correct decision to take?
Inevitably, in a broad movement like ours, which is moreover part of a broader governing alliance, there were many different views within our ranks on why the Scorpions should be dissolved, some good, some bad, some in between. This ranged from people wanting to avoid being pursued by the Scorpions for their wrongdoing to those who genuinely believed the Scorpions had allowed themselves, wittingly or unwittingly, to be politicised.
Ultimately, it's the reasonably sound reasons that counted the most. This included the views that they had too broad a mandate, took advantage of the lack of clarity on what constituted "organised crime" by taking on cases that didn't fall under it, and they began to take over the functions of other entities.
There were "turf" battles and persistent tensions between the Scorpions, SA Police Service and other criminal and intelligence investigative agencies. There were also issues of political accountability: how to manage the prosecutors being accountable to one minister and the police in the Scorpions being accountable to another?
5. Do you believe the Scorpions became too involved politically?
There was a strong view that the Scorpions were being used to settle political scores within the ANC. Moreover, through the Scorpions' preliminary statements, aggressive media profiling of investigations in progress and media leaks, some people's constitutional rights to a free trial were being undermined and innocent people were being besmirched.
It was also argued that there were too many people from the apartheid order in the Scorpions who were seeking to settle their own scores, and that outside investigators, including former apartheid intelligence operatives, were being used, and had access to sensitive information without even a cursory vetting, and that they also at times sourced the services of some foreign intelligence agencies outside their legal mandate, instead of working with the agencies that had this legal responsibility.
6. The Scorpions'model was one in which prosecutors led the investigative team. Did it work?
Some in our ranks held that for prosecutors to be leading the investigations in the specific way they were in the Scorpions, enmeshed them too much in the investigations to make an objective decision as to whether to prosecute. Usually, the prosecutors are at some distance from the actual investigation, reviewing the investigation docket the police bring to them. Not all of those who held this critical view of the Scorpions believed that the prosecutors should not be involved in the investigations process at all; they felt that in the Scorpions model they were too hands-on.
7. It sounds like the decision to disband the unit was primarily driven by ANC considerations?
There was a low-intensity war taking place in the ANC-led alliance over the role of the Scorpions and the huge divisions within the ANC, with its then-69% electoral base, was impacting on the broader society, so it wasn't just an internal ANC matter.
It was argued that the Scorpions had become too controversial to be reformed and that it would be far better to draw on the major strengths of the Scorpions and create a new organised crime unit which would also address the problems that had arisen since the Scorpions was formed. Of course, all of this is not to suggest that the majority of the Scorpions were not decent, hardworking committed crime fighters.
8. It is, however, true the Scorpions and Hawks were a political lightning rod?
The new model became a site of contestation within the ANC. Exactly what would replace the Scorpions was not simply contested by those identifying with either former presidents Zuma or Mbeki. It was more complex, and messy. There were "Zuma-ites" who wanted a strong, elite organised crime-busting unit to replace the Scorpions and "Mbeki-ites" who were glad to see the Scorpions disappear, and there were others occupying different positions in some sort of continuum in between. And it wasn't just the ANC in the fray, but also Cosatu and the SACP. Different ANC NEC and alliance members lobbied different members of the (ANC parliamentary) study groups. Different civil society organisations, particularly those with the necessary connections, weighed in too, not just through the public hearings, but also by lobbying within the ANC structures. The final decisions were the outcome of these contestations and the balance of forces within the movement at the time and civil society.
9. The demise of the Scorpions seems to have enabled rampant corruption. Could you not foresee this?
Of course, there were allegations of corruption in 2008, but who could have predicted the speed and sweep of the rampant corruption that followed? Not even the perpetrators, believe me!
And who could have foreseen the speed and extent of the hollowing out of state institutions, not just the Hawks? Or that we would have such brazen state capture? Or that we would have to end up with a Zondo commission? The dismal fate of the Hawks, until recently, has been the outcome of this wider process of the deep decay of the state, our movement and, to some extent, our broader society. It was not an inevitable outcome of the disbanding of the Scorpions, although people sometimes present it like that.
We could not have foreseen that the provisions of the Hawks legislation would not be properly implemented or some highly compromised people would be appointed to lead it or that it too would become such a site of contestation within the ANC, that we would be back to the same Scorpions issues!
10. In retrospect, was it in the best interest of South Africa to dissolve the Scorpions?
Again, that's a question you need to put to the delegates at the ANC's national conference in 2007 and the ANC's NEC more than to me. But given the context and mood then, and the information before us, and for the reasons already explained, why should the Scorpions not have been disbanded?
Why is it that the Hawks are rightly condemned for becoming politicised, but the Scorpions are not?
Why is one politicised organised crime unit acceptable and another not? And why are there constant calls for those who abused the Hawks to face trial but not for those who abused the Scorpions? Why the deafening silence on the Scorpions head, Leonard McCarthy, for example, who was allowed to drift away to Washington? Why are there no calls for him to face trial?
And isn't it naïve to believe that the Scorpions would have been spared the fate of the Hawks, NPA, SARS, SOEs, and other public entities since 2009? Would McCarthy not have been swept away too?
11. But if the Scorpions remained, we surely wouldn't have had the levels of corruption we have now?
There is the view if that if only the Scorpions were not disbanded, we would not have had this rampant corruption. But you can't clutch romantically at the Scorpions like that. The extent of anger among sections of the public about the disbanding of the Scorpions was because they saw this as being done solely because senior ANC leaders wanted to avoid being prosecuted for crimes they were alleged to have committed. There was no willingness to accept that the Scorpions might have also been errant and there were many other reasons to act against them.
In any case, even if the Scorpions had survived, they would very probably have been victims of state capture just the way the Hawks were. People cannot know what would have happened to the Scorpions after 2009 anymore than we could have foreseen what would happen to the Hawks.
The issue isn't so much, should the Scorpions have been dissolved, but why did the Hawks fail? And I've already sought to briefly address that.
And for what it's worth, in the NA debate on the Hawks Bills, I stressed that the majority of us in the ANC were not being triumphalist, nor were we gloating, about the dissolution of the Scorpions, and that actually it was sad occasion, because they were supposed to be a pride of the nation, but had ended up, however so, whoever was responsible, leading to too many divisions.
12. Did the ANC and those MPs who voted to disband the Scorpions not fail the country?
Some people present the decision to disband the Scorpions as a moral failure on the ANC's part and those of us who happen to have specifically processed the legislation on this. But why is it elevated to that? Why is it not seen for what it fundamentally was: a strategic issue?
And insofar as moral issues arise, MPs the world over have to sometimes operate in a "grey zone" in which there are no easy "black-and-white" moral options, and we have to sometimes make difficult strategic and tactical decisions that affect the public that we just cannot anticipate the full outcomes of. And the moral choices we make are not in black-and-white, and not as clear as they often are in our private lives.
Why if disbanding the Scorpions was such a morally repugnant decision did MPs seen as generally honest like Naledi Pandor, Trevor Manuel, Ben Turok, Jeremy Cronin and others vote for it? And so, no doubt, would have Andrew Mlangeni, Aaron Motsoaledi, Pravin Gordhan, Sister Bernard Ncube and others, if they'd been in Parliament then. Some may have had moral challenges about the abortion and civil unions or gay rights bills, but they voted according to the ANC mandates. In this context, could the disbanding of the Scorpions Bill really be seen as a major issue of conscience?
13. Look at all the instances of corruption, surely it could have been prevented?
Of course, people are, rightly, extremely angry at the rampant corruption, especially with the latest around the PPE that has overwhelmed the country. And that rage is good for our society - it'll help towards addressing the issue. I'm not naïve. I don't think at this time, in this mood, most people want to hear any explanation for the disbanding of the Scorpions. I understand that my answers may anger many.
But you've come to me now, as have other journalists, because the issue of a so-called Scorpions-like unit has surfaced again, and I don't want to be a coward and run away from your questions. I've tried to respond as best as I can.
And while I'm certainly not personally responsible for the decision to disband the Scorpions, I certainly am part of the collective ANC that did, and in that sense I am certainly responsible, and I've tried to give you an explanation for that decision. And let me be clear: I'm not above my party.
14. Why have the Hawks failed?
There was nothing inherent in the Hawks legislation or model that made for this (failure). It was the way the new legislation was implemented, the failure to ensure that other aspects of the model that had to be decided on were finalised, some of the questionable appointments of senior Hawks officials and, crucially, the balance of forces within the ANC and government since then that shaped the performance of the Hawks.
Yes, the Scorpions had a very good conviction rate, and that was welcomed, but, remember, it was also being said, whatever the merits of this, that they chose specific cases that had a high probability of conviction.
15. Were the Hawks doomed to failure from the beginning?
It's certainly not the case that we provided for a limp, impotent Hawks. We didn't stumble forward like mindless zombies to obliterate the Scorpions and widely open the doors to rampant corruption. Nor, as is sometimes suggested, did we scramble to outdo each other to impress former president Jacob Zuma in hot pursuit of Cabinet and other pay-back positions.
Actually, we substantially changed the Hawks Bills tabled by the Cabinet to make for an effective organised crime-fighting unit. We spent about 190 hours in formal meetings of the committees and subcommittee and at least another 100 hours in informal exchanges with key stakeholders on the bills to develop an effective substitute for the Scorpions.
16. Did Parliament take proper account of the public views?
We had extensive public hearings nationally and in each of the provinces, attended by over 7 000 people. Some said that this was a sham. But the hearings were not on whether the Scorpions should be disbanded or not, but to explain the context for it being replaced and get responses on what the new unit should be. While the ANC conference decided on disbanding the Scorpions, there was no clear guidance on what should substitute for it.
17. Was replacing the Scorpions with the Hawks a successful exercise, in your mind?
With all that, we still emerged with a reasonably good model. Despite huge political party differences within the three committees, we agreed on the broad principles of a new organised crime unit. These included the need for a multidisciplinary approach that should include participants from the SAPS, NPA, SARS, Home Affairs, FIC and the intelligence agencies and that prosecutors should be involved with the investigators from the outset of an investigation.
The definition of national priority offences, including organised crime, should be made clearer, and the multidisciplinary approach and integrated methodology of the new unit emphasised.
18. The big issue has always been the independence of investigations and prosecutions. The Hawks clearly weren't?
The Hawks had to be free from political interference and an oversight and complaints structure, headed by a retired judge who had to oversee the performance of the new directorate and investigate any legitimate complaints from citizens about abuse by any member of the unit.
Crucially, there also had to be far more effective parliamentary oversight of the unit.
We looked at five models that could give effect to these principles. Our differences were on what model we should adopt.
Among the many changes we made to the bill were those related to effective Cabinet and inter-departmental co-ordination on organised crime and strengthening parliamentary oversight, including through annual reports from the Hawks on their performance.
19. Should investigators not be able to work alongside prosecutors?
While we separated the prosecutors from the investigators in the same unit, we did not legislate against them working together on a case.
In our report to Parliament we stressed that the legal officers within the SAPS should also advise investigators on cases to ensure that they are legally tenable and will not be challenged in court. So, there was nothing precluding the prosecutors and investigators working together effectively and the ministerial and interdepartmental committees were meant to assist in this regard. Departments and institutions, such as the Department of Home Affairs, SARS and the Financial Intelligence Centre would have to second staff to the Hawks as requested.
Instead of a "prosecution-led" investigation approach of the Scorpions we suggested a "prosecution-guided" approach.
We sought legal advice from the Office of the Chief State Law Advisor on several issues raised in the public submissions and on the final bills. The office said that the amended bills were sound and didn't violate any international conventions.
20. Did the police and Scorpions not work well together?
At times, Scorpions and SAPS investigators pursued the same cases using different guidelines to investigate them. The Scorpions were also accused of carrying out intelligence functions which they were not mandated to, and abusing their powers.
Other crime-fighting units resented what they said was the Scorpions' high-handed manner of operating and their arrogance, complained that they were "cherry-picking" cases with a high media profile and potential to secure convictions to claim to be the only unit that did any work, and that they were given far more resources than these other units. Whatever the merits of this, these perceptions needed to be addressed because of their negative practical consequences.
21. Why then did the Hawks fail to live up to what you hoped it would become?
In the legislation and our report to Parliament, we were clear that there should be a two-phased approach to developing an effective organised crime-fighting unit. The legislation required the minister of safety and security to report to Parliament within three years of the formation of the Hawks on its performance and the need for any legislative amendments to improve the functioning of the unit. How were we to tell that this wouldn't take place effectively and that all three relevant parliamentary committees would after, the 2009 elections, have so many new members who had no experience of processing the Hawks legislation and an adequate understanding of the complex political issues that had to be negotiated to get to the legislation?
Although there were hints of this at the time, and we tried to address it when we met with the whole Scorpions staff in Tshwane, we did not foresee such a big loss of skills and experience for the new organised crime-fighting unit by so many people refusing to move from the NPA to the new unit and others leaving to join the private sector.
But, yes, we should have done more to prevent this in the processing of the bills, instead of engaging with their representatives in the technical advisory committee and in the formal processing of the bills.
22. But the losses of skills and personnel were inevitable, given the unit's demise?
Some will say that what happened after the Scorpions were disbanded was inevitable and foreseeable. I just don't buy that. In any case, politicians are ordinary mortals, and while we take decisions based on a reasonable assessment of the period ahead, we don't have a crystal ball to foresee the future. Those who have this crystal ball should please tell us when exactly Covid-19 will recede and if and when a worse pandemic will hit us…
23. What kind of corruption-busting unit do we need now?
We need a unit that goes beyond the Scorpions, we need a multi-agency unit which brings together a range of units and skills relating to dealing with organised crime. We certainly don't need another politicised Scorpions or Hawks. We need a very strong, properly capacitated, independent, multi-disciplinary structure, which includes the widest range of crime-fighting skills. How they should come together and in what form and structure, that's not for me to say, it's for the current decision-makers to decide.