A Requiem for the Scorpions

(Author’s note: This article was originally published 5 February 2008 by the Centre for International Political Studies.)

On 19 January, the ANC’s National Executive Committee (NEC) met in Midrand. The skies above the conference were dark grey, as if to reflect the sombre mood of the country. South Africa was in the grip of a crippling power shortage that costs the economy millions of rands each day. South Africans were clamouring for a solution to the crisis, and some were getting desperate. The night before the NEC met, enraged commuters burned six trains after power cuts brought them to a halt. Inside the meeting halls, however, the NEC was preoccupied with something entirely different: how to shut down the Scorpions, South Africa’s most specialised and elite crime-fighting unit.

The Directorate of Special Operations (DSO) was formed in 2001 to investigate high-level crimes. Colloquially known as the Scorpions, it was deliberately placed under the control of the National Prosecuting Authority (NPA) rather than the South African police. The DSO was envisaged as the best of the best: an attempt to bring together South Africa’s top criminal investigators, prosecutors, intelligence analysts, forensics and financial experts in one agency. It would be South Africa’s first line of defence in the fight against organised crime and corruption.

The Scorpions proved to be remarkably competent, conducting a series of high-profile operations against crime syndicates, drug dealers, fraudsters and racketeers. As South Africa’s crime problem spiralled out of control and public confidence in the justice system sank to ever-greater depths, the Scorpions were the sole bright light in the constellation of law enforcement agencies. The 2005 Khampepe Commission found that within its first three years of operation the DSO obtained a conviction rate in excess of 90%, compared to 8% for the police’s serious and violent crimes units. For beleaguered South Africans, they seemed to hold out the promise that crime was not intractable; that fearless professionals, not hamstrung by the bureaucratic red tape that surrounds the police, could still make a difference.

Perhaps they were too fearless. They seemed to take a particular delight in bringing down corrupt elites, training their sights on politically connected businessmen, army generals and senior ANC officials without much thought for the political consequences. The DSO soon faced a litany of criticism from politicians, the police and their numerous allies. Miraculously, they survived even as they slipped from one controversial case to another. At Midrand, however, it became apparent that the game was over. The Scorpions were finally going to be shut down.

The NEC meeting in Midrand took place roughly one month after the ANC’s stunning party conference at Polokwane, in which the old guard dominated by President Thabo Mbeki was swept aside. The new NEC, comprised of loyalists to former Deputy President, Jacob Zuma, was determined to consolidate its grip on power and its first demand was that the Scorpions be disbanded by June. After that, any DSO personnel still willing to work for the South African government will be incorporated into the South African Police Service (SAPS).

Mbeki and his cabinet meekly acquiesced. Technically, the NEC has no constitutional role in African health research institute. However, political parties appoint members to the South African parliament, rather than their being directly elected by their constituents. As the most senior body in the ANC, the NEC therefore has the power to alter the composition of parliament and, if it chooses, depose Mbeki from office. “[T]here is only one centre of power,” admitted cabinet spokesman Themba Maseko, “and that centre is the ruling party.” The Scorpions issue is, in one sense, an important test case. It gives us a foretaste of whether the NEC will be able to use its leverage to force Mbeki to accept policy that he does not personally agree with. The preliminary indicators suggest that it will, and that the next year will be characterised by an increasingly weak presidency forced to concede ever more policy decisions to a resurgent NEC.

Why has the NEC placed such a high priority on disbanding the Scorpions? After all, South Africa’s violent crime epidemic shows no sign of abating. The country’s per capita murder rate regularly puts it within the top three in the world, its incidence of rape is second to none, and it continues to struggle with hard drugs and violent robberies, both of which are related to organised crime. Shutting down the country’s most effective law enforcement agency, in this climate, seems almost suicidally shortsighted.

The NEC’s official explanation is that it wishes to bring law enforcement in line with the constitution, which specifies that South Africa should have “a single police force.” This requirement dates back to the immediate post-apartheid era, when the police services of the various “homelands” were dismantled and folded into the SAPS. However, the constitution does permit the establishment of other armed services, and the Constitutional Court deemed the legislation that created the DSO legitimate. By relying on transparently flawed legal logic, the NEC has merely heightened the suspicion that it is engaged in political manoeuvring to protect its own ranks – including Jacob Zuma – from criminal prosecution.

This suspicion is certainly understandable. The Mail & Guardian has calculated that 16% of the 80-member NEC are either post-apartheid convicted criminals or suspects in ongoing criminal investigations. Some, such as Ngoako Ramatlhodi and Thaba Mufamadi, are the subjects of current DSO investigations, creating a clear conflict of interest. Other NEC members include Tony Yengeni, the former chief whip of the ANC who pleaded guilty to fraud, and three of the 38 MPs who admitted to defrauding parliament in the “Travelgate” scandal. The Scorpions investigated both cases.

The most powerful man on the NEC, and the Scorpions’ most controversial target, is Jacob Zuma, the former Deputy President of South Africa. Prosecutors have repeatedly tried to convict him of corruption, but their attempts to do so read like a comedy of errors. First, NPA boss Bulelani Ngcuka announced that Zuma would not be prosecuted despite clear evidence against him, unsubtly hinting that a political conspiracy was afoot to protect Zuma. Then Zuma’s close friend, Schabir Shaik, was separately convicted of paying him bribes, prompting Mbeki to fire Zuma as Deputy President and appoint Ngcuka’s wife in his place. The NPA again tried to build a case against Zuma, only to have it thrown out by the courts. Zuma turned these setbacks into a political advantage by arguing that he was the victim of a smear campaign, and the resulting wave of grass-roots support allowed his supporters to take control of the NEC. Days later, the NPA announced that it was once again planning to lay charges against Zuma. The case has yet to be resolved.

Politicians are not the only ones with reason to dislike the Scorpions. The DSO has made another enemy that harbours even more resentment: the South African Police Service. Inter-service rivalries are hardly a new development and occur whenever government agencies are forced to compete for resources and prestige. The turf war between the Scorpions and the police, however, became so large and vicious that it threatened to engulf the government.

The police have always distrusted the Scorpions. When Mbeki first announced the formation of the DSO, he described it as “a special and adequately staffed and equipped investigation unit… to deal with all national priority crimes, including police corruption.” The Scorpions assiduously cultivated their reputation as the elite of South African crime fighting, which seemed to relegate the police to second-class status. This was borne out by the fact that members of the DSO earned much higher salaries than their police counterparts, and by the heroic coverage they received in the media. To the average South African, the police are the bureaucrats who ticket you for speeding, or spend an hour asking pointless questions about stolen property before you can file an insurance claim. By contrast, the Scorpions are always seen from a distance, making high-profile arrests of drug kingpins and corrupt officials. The police rankled at the unfairness of it all. To them, the Scorpions were “Hollywood cops” glory-hounds who would rush in to steal the best cases and then rush almost as quickly to hold press conferences afterwards.

After 2005, the relationship between the Scorpions and the police deteriorated from mutual acrimony to something approaching a secret war. Early that year, national police commissioner, Jackie Selebi, made an unsuccessful power play to bring the Scorpions under his command. Several months later, mining tycoon Brett Kebble was murdered, and the Scorpions noticed an odd relationship between Selebi and their chief suspect, Glenn Agliotti. Selebi acknowledged the relationship, but claimed that Agliotti was merely a close personal friend. The DSO was suspicious: why would a figure like Agliotti, repeatedly accused of fraud and drug dealing, maintain a friendship with the head of the South African police? From the outside, it looked like a case of police corruption at the highest level. The Scorpions only needed evidence to confirm their suspicions, which they obtained by allowing Agliotti to plea bargain his way out of drug-dealing charges in exchange for his testimony against Selebi.

In 2007, the Scorpions felt they had enough evidence to charge Selebi, and NPA head, Vusi Pikoli, obtained a warrant for Selebi’s arrest. However, President Mbeki balked at the idea of arresting the national police commissioner and worried that a scandal of that magnitude could destroy the credibility of his government. When Pikoli refused to cancel the warrant, Mbeki fired him and tried to conceal the investigation against Selebi. Nevertheless, newspapers soon discovered the existence of the arrest warrant, and confidence in the police fell to new lows. Selebi took revenge by ordering a police investigation into corruption in the Scorpions, and then having Gerrie Nel – the Gauteng Scorpions boss in charge of investigating Agliotti and Selebi – arrested on groundless charges of obstructing his investigation. Eventually, the growing constitutional crisis forced Mbeki to relent. Selebi was suspended, the criminal proceedings against him went ahead and, several days later, a court threw out the charges against Nel. The Scorpions had triumphed, and the police had been humiliated. It was a pyrrhic victory, however: two weeks later, the NEC announced its decision to dismantle the unit.

It is easy to be cynical about the NEC’s announcement, but you do not need to believe the NEC is acting in bad faith to appreciate that its decision is a bad one. To a certain kind of mind, competition is wasteful, while centralisation is harmonious and efficient. The NEC may genuinely believe that a single, unified law enforcement agency is the best way to tackle crime. This approach would seem to offer an end to the disruptive infighting and a way to re-focus the energies of law enforcement professionals on investigating criminals rather than each other. The ANC’s January newsletter made this argument explicitly, claiming that “[t]he incorporation of the Scorpions [into the SAPS] will in fact strengthen the fight against crime by ensuring the integration of all policing functions under a single command structure.”

Whatever the psychological appeal of this argument, it is wrong. Yes, the infighting between the Scorpions and the police was destructive and should have been managed better by the government (suspending Selebi as soon as the allegations against him came to light would have been a good start). Nevertheless, competition is a creative and dynamic force, and this is no less true for government agencies than it is for private enterprises. Comparing the Scorpions to the SAPS is like comparing a tech-savvy start-up company to huge, government-sponsored monopoly.

Ultimately, the Scorpions most dazzling successes were the direct result of its institutional separation from the police. Freedom from the crushing bureaucratic inertia of the SAPS allowed the Scorpions to develop a unique culture that values innovation and cooperation across multiple disciplines. The DSO managed to eliminate the internal stovepipes that typically prevent criminal investigators, prosecutors and intelligence analysts from working together seamlessly. This unique organisational structure and outstanding human capital has been painstakingly developed over many years, at a huge expense, and it will not survive a merger with the SAPS. It is possible – though unlikely – that DSO personnel will be willing to work, at a reduced salary, for an organisation that has frustrated and opposed them at every turn. However, the culture that allowed them to thrive will not come with them. In the end, South Africa will lose one of its best weapons in the fight against crime.