Letter to President Thabo Mbeki regarding the Proposed Bill regarding the Directorate of Special Operations (4 March 2008)

Dear Sir

I write to advise you of our grave concerns regarding the above-referenced matter. Although no draft has been circulated to date, recent public statements of certain members of the government and some leaders of the African National Congress have caused us to fear that the bill may be in concept inconsistent with the Constitution of the Republic of South Africa.

We understand that the Bill will take the form of an amendment to the National Prosecuting Authority Act (Act 32 of 1998), causing the Directorate of Special Operations ("DSO"), established under section 7 of the Act, to be dissolved. We understand further that, insofar as elements of the DSO are to be absorbed into the South African Police Services, amendment of the Police Act (No. 68 of 1995), may also be contemplated.

Notwithstanding the proposed legislative process referred to above it is apparent that the matter was precipitated by the December 2007 ANC Conference in Polokwane, where a resolution was adopted to disband the DSO by June this year without any reasons being advanced. The morale of DSO staff is threatened; even before the parliamentary announcement by the Minister of Safety and Security, the Acting Head of the National Prosecuting Authority, Adv. Mpshe, had already issued a circular to DSO staff that described the December ANC resolution as a fait accompli. Thus it would appear to us that the current process is designed to demoralise DSO staff and cause an exodus of skills from the unit even before the legislative amendments have been finalised.

It is our considered view that three key features of the DSO have enabled its success. First, the investigative and prosecutorial functions are combined in a single law-enforcement unit, facilitating the collaboration from the ground up that is indispensable to the combating of complex crime.

Second, the DSO's political, institutional and operational independence, which has allowed it to pursue public corruption in a manner that might have been otherwise impossible. Third, the fact that the DSO is a relatively small, well-trained and highly paid unit of specialists, many with interdisciplinary skills, has afforded a focus, cohesion and esprit de corp.

We would point out that you are on record of recognising the special importance of the DSO in the fight against crime. In your 1999 State of the Nation speech, you said:

"[A] special and adequately staffed and equipped investigation unit will be established urgently to deal with all national priority crimes, including police corruption. When dealing with syndicates, to whom money is no object, it is quite easy for bribery and corruption to creep in. With a smaller unit, one is able to manage this by setting out higher entry-level tests.

There are very cogent reasons for us to have a unit such as the Scorpions in our democracy, not least of which is to act as a buffer between serious criminals and our vulnerable societies."

If, as appears likely, the contemplated bill impinges the essential features of the DSO to which we refer, the unit will effectively be abolished in its current form. This would mark the destruction of a component of our criminal justice system that has emerged as an indispensable check on the scourge of organised crime and public and private corruption that currently threatens the very existence of constitutional democracy in South Africa.

Aside from the substance of the Bill, we are concerned about the adequacy of public participation that will be possible if, as has been suggested, the government plans to finalise the legislation by June this year. Counsel has advised that the fact that the Bill concerns a matter of overwhelming public interest - and that no particular urgency could reasonably be said to attach thereto -- may render it subject to constitutional attack if it is fast-tracked through Parliament.

Against that background, we advise that we will, if the Bill is passed in the form and manner contemplated, request that you exercise your powers under s. 79 of the Constitution to refer the Bill back to the National Assembly for reconsideration, and, if the Bill's unconstitutionality is not cured, to refer the Bill to the Constitutional Court.

Finally, we request that the Khampepe Judicial Commission Report, regarding the DSO be released forthwith. While we were gratified that you undertook to release the document in your reply on February 14 to the debate on your State of the Nation speech, you did not say when the public could expect to see it. We urge that the report be released immediately, to afford the public and interested parties adequate opportunity to prepare to participate meaningfully in the legislative process that lies ahead.

Sincerely yours,

HB Holomisa, MP
UDM President

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