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Response to Fivaz-Njenje\'s Sunday Times article

6 July 2008

George Fivaz and Gibson Njenje, respectively former national police commissioner and national intelligence agency deputy head, hit the nail on the head in their sober contribution to the discourse on the future of the Directorate of Special Operations, better known as Scorpions. In their input, "Admit it, the Scorpions failed" (Sunday Times, July 13), the two ex security chiefs asks, "Has the DSO done the job for which it was established?" - a critical question some conveniently ignore in their narrow and shallow defence of the Scorpions. It is indeed refreshing to see politically unaligned individuals beginning to contribute soberly in this crucial public debate in the interest of what the African National Congress seeks to achieve: a strong and coordinated criminal justice system that is capacitated to effectively fight all kinds of crime within the country. This critique by the two writers emphasise the point we expressed in number of papers earlier this year.

The Scorpion were established more than seven years in line with the National Prosecuting Authority Amendment Act of 2000 with a clear mandate to, among other things, (a) investigate and carry out any functions incidental to investigations; (b) and where appropriate, institute criminal proceedings and carry out any necessary functions incidental to instituting criminal proceedings relating to other offences as determined by the President by proclamation in the Gazette, or offences or any criminal activity committed in an organised fashion.

With regard to the latter, the mandate of the Scorpions is not to deal with any other organised crime, but organised crime that is complex, complicated and transnational in nature, and therefore demands specialised skills and unique methodological approach.

Juxtaposing the legislative mandate of the Scorpions with its actual performance in the last seven years, one has no option but to concur fully with Fivaz and Njenje\'s conclusion that the unit "has not done the job that was its reason for existence: it has underperformed, it has divided rather than united, and it has left organised criminals as powerful as they were in 1999 - if not better able to resist policing efforts, and better resourced".

The fact is that the so-called 85 percent prosecution rate, which serves as the backbone of the pro-Scorpions propaganda, is fallacious. If indeed the Scorpions had operated within its mandate, it is unlikely that it could have scored the high success rate it reported to Parliament in its report of the previous financial year. A simple audit points to the fact that the unit grossly misrepresented the figures and that about 90 percent of its cases were simple police matters that fell outside of its mandate.

The Head of the Unit, Leonard McCarthy, confessed to parliament in March that a perception that Scorpions performed better than the police was dangerous and misleading, as the so-called success rate was inflated. Consistent with Fivaz and Njenje\'s assertion that the \'success rate\' is a consequence of the unit\'s practice of cherry picking cases with a potential for successful prosecution, McCarthy stated that the "indicator [85 percent] is really taken much too far in the public domain. It is not really a success indicator if you look at it in isolation, because the DSO has the ability to select its cases. I must also add that probably 25 percent of our cases are disposed of through plea-bargaining" (Sunday Independent, March 2, 2008).

The unit has failed in its mandate to uproot organised criminal activities. Most of crimes that make up the much touted 85 percent successful prosecution rate are petty crimes, which are a terrain of the South African Police Services. This is what has resulted in turf wars and tensions between the Unit and the police. Indeed there is nothing complex in cases that the Scorpions have engaged in, such as those involving corrupt Road Accident Fund attorneys who submitted fraudulent claims; doctors robbing medical aid companies through false claims; the get-rich-quick Miracle 2000 pyramid scheme; and the Nigerian Letter scam (or 419 scam) in which individuals are promised large sums of money in exchange for upfront payment. All these cases and many others that the Unit dealt with in contravention of its legislated mandate and in clear conflict with the police, are not complex. The SAPS has dedicated and specialised units to deal with them.

The ANC\'s decision to incorporate the DSO into the police service is informed by the resolve to bolster the country\'s criminal justice system through the integration and coordination of all crime fighting structures of the state. This will help to address the weaknesses of coordination as well as existing, "divisions, interagency bitterness, resentment and rivalry" within the law enforcement agencies - as correctly observed by both Fivaz and Njenje. The creation of a single, seamless and strong crime fighting unit will also help to rid the unit of other malpractices that has tainted its character over the years. Such includes the role of the Scorpions in the controversial Browse Mole report, illegally working with foreign intelligence agencies; employment of senior officials without security clearance, usage of outsourced companies for intelligence gathering and analysis without first putting them through vetting process; as well as conducting investigation through the media without first informing individuals under investigation.

The ANC and its government are opposed to all forms of crime, including organised crime, and corruption. No revolutionary democratic project will be possible in any country without a significant reduction of crime and corruption, and maintenance of safety and security of all the people. Crime, in all its manifestations, contributes to perpetuation of poverty and poses an enormous threat to our national democratic trajectory. As emphasised by this year\'s January 8th Statement of the ANC, we cannot allow criminality and lawlessness to undermine our hard-won freedoms and hinder the progress of our nation.

The ANC and its government must be lauded for intervening to ensure that our crime fighting mechanisms are bolstered.

Nathi Mthethwa
ANC Chief Whip

     
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