Investigating Directorate With A Sting - Lessons From The Scorpions In Tackling Complex Corruption
Anton du Plessis (Deputy National Director of Public Prosecutions, NPA) and Andrea Johnson (Investigating Director, NPA)
Widespread corruption continues to destroy the hopes and dreams of law-abiding South Africans. Our people, especially the youth, are yearning for accountability and justice so that they can once again believe in a brighter future.
Accountability for corruption at all levels must become the norm, not the exception. The Zondo Commission reports are a start, and there have already been dozens of prosecutions initiated, but we need to do better. While prosecutions alone will not solve our problems, we cannot reclaim our state from capture without a strong and effective government response to corruption, and a strong and effective NPA.
President Ramaphosa knows, understands and supports this. In February 2019, in his second State of the Nation Address, he announced plans to establish the Investigating Directorate (ID) in the NPA to deal with the high number of cases emanating from inter-alia state capture, PIC & Nugent Commissions of Enquiry.
The return of the Scorpions?
The creation of the ID generated high expectations, with some even describing it as the rebirth of the Scorpions. It was an understandable hope, but the ID faces different challenges as it takes on the investigations and prosecutions flowing from state capture. It is important to understand and appreciate this.
The Scorpions had a broad legislative mandate to focus on serious and organised crime, including corruption. It built an international reputation as a trailblazing criminal investigations and prosecutions unit that effectively used the latest techniques to tackle the most complex crimes.
Between 2001 and 2009, the Scorpions used teams of criminal investigators, prosecutors and analysts to successfully prosecute high-level and complex cases. And it did so with a slick media and public relations campaign. Some may have considered it over the top, but who will forget the black Golf GTIs and bold Scorpions insignia? During this time, public confidence in the NPA was at an all-time high.
As we enter the next phase of the existence of the ID, it’s important to consider lessons from the Scorpions and what can be done – over the short- and longer-term – to endow the ID with the legal and operational attributes that allowed the Scorpions to succeed. And of course also draw lessons from what did not work so well.
The Scorpions’ legislative powers and teamwork were essential to its success, but the ID still lacks these powers and fully dedicated and permanent teams.
ID established in a less-than-ideal legal framework
Under the current legal framework, the President cannot give the ID the powers that it lacks simply by proclamation. When Parliament disbanded the Scorpions in 2008, it amended the NPA Act to prevent the restoration of the Scorpions within the NPA. Instead, Parliament created a specialised investigative unit within the South African Police Service (SAPS) – the Directorate for Priority Crime Investigation (DPCI) also knows as the Hawks. The DPCI is responsible for investigating national priority crimes such as serious forms of organised crime, commercial crime, crimes against the state and corruption.
Parliament also provided for the creation of Investigating Directorates within the NPA, by proclamation of the President, on the recommendation of the NDPP and the ministers overseeing justice and the police. Yet an ID established in terms of the trimmed down NPA Act differs from the erstwhile Scorpions in fundamental and debilitating ways.
Unlike the Scorpions, the ID can be disbanded or its jurisdiction curtailed by executive fiat, without the involvement of Parliament. The ID’s investigators lack the police powers of arrest, search, and seizure. And the ID’s teams are composed of staff on temporary assignments or time-limited contracts.
The ID must rely principally on seconded experts – from investigators to analysts. Such seconded staff do not enjoy security of tenure with the ID. Rather, their jobs remain dependent on their “home departments” which can recall them, promote them (or not), and influence their work and morale in various ways.
In 2006, the Khampepe Commission of Inquiry into the mandate and location of the Scorpions concluded that a dedicated anti-corruption unit would best be independent, using a multi-disciplinary approach under the troika principle of prosecution-led and intelligence-driven investigations, and positioned to attract, recruit, reward, and retain highly skilled personnel. Moreover, that such a unit would require coordinating mechanisms to ensure cooperation between relevant government departments.
The Constitutional Court, in the Glenister series of cases, has underscored the Khampepe Commission’s findings, that the Constitution requires that the state creates a body sufficiently independent to deal effectively with corruption and that such a body must be independent. The independence of such a body is to be judged on factors such as security of tenure, remuneration, and structural insulation from ministerial direction and discretionary control.
How to empower the ID?
Given the ID’s limitations, what can be done to strengthen it in the short-term and repair weaknesses in the criminal justice system architecture over the longer term?
In the short-term, the President could issue a revised proclamation, expanding on that which he signed in 2019. Such a proclamation could sharpen the scope of the ID to focus on the most serious, high-level, and complex corruption matters carried out in an organised fashion.
The ID must have the flexibility and the ability to procure specialist services quickly and at higher rates than the current NPA scales. The Zondo Commission was able to procure the services of investigators, lawyers, and forensic accountants from the private sector quite effectively. Procurement flexibility, similar to that allowed the Deputy Chief Justice to build his team should be available to the ID as it transitions into a more permanent and expanded structure.
A revised proclamation could also speedily establish an interdepartmental structure that can maintain operational coordination and cooperation with key law enforcement partners like SAPS and DPCI, the intelligence services, as well as other departments of government. This is important to ensure there are no conflicts over “turf” between the ID and its SAPS counterparts, especially the Hawks. Moreover, such a structure will promote the effective sharing and actioning of relevant information.
Towards a Scorpions-like ID on corruption
Over the longer-term, the NPA Act could be amended to establish a permanent ID on corruption through legislation whose existence or mandate cannot be undermined by executive fiat.
The amended legislation should allow for the re-introduction of Scorpions-like prosecution-led approaches in relation to complex corruption. This will allow the ID to appoint special investigators with full police powers who will work in teams with prosecutors and analysts. These investigators and analysts will be NPA staff with fulltime positions and aligned performance management processes.
With such a new legislatively-mandated structure, the ID will be able to build a multidisciplinary team that is fit-for-purpose, with the legal certainty required to attract and retain the necessary specialised skills. Of course, additional funding and support will also be required. But recent increased budget allocations and statements by the Minister of Justice indicate that support for these bold and innovative approaches to building the NPA’s capacity and skills exists.
The window of opportunity to bolster the ID as SA’s permanent and specialised corruption prosecution unit is currently open. The efforts of the NPA, prior to the era of state capture, have shown that it can be a global leader when it comes to prosecuting complex corruption cases. Let’s use the lessons from the past to design the ID of the future.