QUESTIONS over new police unit
The Scorpions are set to be dissolved into the South African Police Service (SAPS) by Parliament after the safety and security committee is formally briefed on the General Law Amendment Draft Bill that was tabled last week.
The ANC is pushing for the bill to be processed by the committee within the next month.
The bill amends the SAPS Act and the NPA Act, taking the Directorate for Special Operations (Scorpions) out of the NPA and transferring it to SAPS, where Scorpions investigators will become part of the Directorate for Priority Crime Investigation (DPCI).
This will be a new police unit that will also include members of the organised crime component and commercial crime unit of SAPS.
Heading up this unit will be a divisional commissioner directly appointed by the commissioner of police.
The two most far-reaching changes to the Scorpions are that they will now be under the control of the commissioner of police, and there will be no more prosecution-led investigations.
These investigations are said to be the main factor contributing to their high conviction rate.
At present Scorpions cases are dealt with by an investigator, analyst and prosecutor, all working together from the start of the case.
"The prosecutor leads the process," says Prince Mashele of the Institute for Security Studies. "The investigator places pieces of evidence with the analyst, who then considers crime intelligence arising from existing evidence.
"The prosecutor advises both the investigator and analysts on aspects that need further investigation in order to build a formidable legal case that will stand the test of law in court."
In ordinary prosecutions the police do all the investigative work independently and often prosecutors see the evidence in the docket just minutes before the accused appears in court.
Crucial evidence needed for a successful prosecution is often missing from the docket.
The Khampepe Commission, which investigated the conflict between the Scorpions and police, pointed out that investigators don't have enough legal skill to know what evidence needs to be collected for prosecution and are "not qualified to make difficult decisions of law".
The General Law Amendment Draft Bill does not recognise this and says all prosecutors working for the Scorpions will be transferred back to the National Prosecuting Authority (NPA).
Though there have been reports that a team of legal experts will work closely with the DPCI, this is not legislated for in the bill.
Safety and Security Minister Charles Nqakula's spokesman, Hungwani Mulaudzi, maintains that: "There will be a contingent of legal practitioners who will provide guidance to the DPCI.
"They will be working for the NPA. I don't know if the NPA will be restructured but once the bill has been passed in Parliament these details will be finalised."
But Mashele says that there is a gap in the law in this crucial area. "The impression that government has been giving is that there will be lawyers working with the new unit, but that is not found anywhere in the bill," Mashele says.
"Even if we assume that the gap will be closed by making sure that the unit benefits from the SAPS legal department, it won't be enough because this department is meant to service the type of specialised work that will be conducted by the DPCI.
"If we don't have built-in legal capacity the effect of the new unit will be compromised and undermined."
There are also likely to be problems over who will lead future investigations. The bill says only directors or those of a higher rank may conduct investigations, and it is not clear what ranks will be assigned to Scorpions investigators.
Mashele says "it is difficult for society formulate a reliable opinion whether the new unit is the best environment for the kind of expertise the Scorpions have".
Though Nqakula has promised that all cases currently being investigated by the Scorpions will be finalised, the bill paves the way for the head of the DPCI to hamper investigations because she or he is legally entitled to dictate what procedure is used in each investigation.
The government is not planning to leave the Scorpions intact until they complete their current investigations because these could take more than a year.
And since the DPCI will have a new SAPS boss who can decide on new procedures in these ongoing investigations, it seems unlikely that the investigation into suspended police Commissioner Jackie Selebi will continue.
The bill has so many gaps that "it leaves us speculating", Mashele says.
There are voices calling for the Scorpions to be radically reformed. Economist and anti-arms deal activist Terry Crawford-Browne says transferring them to the SAPS will compound the problem.
Crawford-Browne filed an application in the Cape high court last week for documents related to the arms deal.
l Anna Majavu is a freelance writer based in Cape Town.